{"id":88489,"date":"2011-09-28T00:00:00","date_gmt":"2011-09-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/late-narayanlal-bansilal-vs-the-state-of-maharashtra-on-28-september-2011"},"modified":"2018-03-29T22:31:46","modified_gmt":"2018-03-29T17:01:46","slug":"late-narayanlal-bansilal-vs-the-state-of-maharashtra-on-28-september-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/late-narayanlal-bansilal-vs-the-state-of-maharashtra-on-28-september-2011","title":{"rendered":"Late Narayanlal Bansilal vs The State Of Maharashtra on 28 September, 2011"},"content":{"rendered":"
Bombay High Court<\/div>\n
Late Narayanlal Bansilal vs The State Of Maharashtra on 28 September, 2011<\/div>\n
Bench: B. P. Dharmadhikari, A.P. Bhangale<\/div>\n
                                 1\n\n\n\n\n                                                                          \n             IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                  \n                       NAGPUR BENCH, NAGPUR.\n\n\n\n\n                                                 \n                         FIRST APPEAL 142 OF 2000\n                                   WITH \n                          FIRST APPEAL 53 OF 2001\n                                   WITH \n                   CIVIL APPLICATION (F) No. 2282\/2011.\n\n\n\n\n                                    \n                    ig               ............\n\n\n     FIRST APPEAL No.142\/2000.\n                  \n     1.Late Narayanlal Bansilal\n        (through Shri Madhavlal N. Pittie\n        Receiver of the Immovable Properties,\n      \n\n        appointed in the High Court Suit\n        No. 224 of 1961) Great Social\n   \n\n\n\n        Building, 4th Floor, 60 Sir P.M. Road,\n        Fort, Bombay 400001.\n\n     2.Smt. Rajkumari N. Pittie III Plazzo,\n\n\n\n\n\n        Little Gibbs Road, Malabar Hill, \n        Bombay 400 006 (Deleted as per \n        Order dated 24.6.1999 \n        below Exh.254). \n\n\n\n\n\n     3.Shri Balkrishnalal N. Pitale, \n        (HUF), Flat No.12, \"Palmera\" \n        Altamount Road, Bombay 400026  \n        (Dead) \n\n     3-I. Mrs. Radhabai Pitte.\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 17:46:54 :::\n                               2\n\n\n     3-II.Mrs. Veena N. Ruia,\n\n\n\n\n                                                                        \n            R\/o. Samudra Mahal, 17th Floor,\n            417, Dr. Annie Besant Road,\n\n\n\n\n                                                \n            Worli, Bombay - 4400018.\n\n     4.Shri Madhusudanlal N.  Pittie\n        (HUF), \"Suket\", (Dead through L.R)\n\n\n\n\n                                               \n         Smt. Damyantibai Madhusudanlal Pittie,\n         29-B, Dongerisi Road \n        Malabar Hill, Bombay 400006. \n\n     5.Shri Madhavlal N.  Pittie\n\n\n\n\n                                   \n        (HUF), \"Suket\", 29-B, Dongerisi Road \n        Malabar Hill, Bombay 400006. \n                   \n     6.Shri Madhavlal N.  Pittie\n        (IND), \"Suket\", 29-B, Dongerisi Road \n                  \n        Malabar Hill, Bombay 400006. \n\n     7.Shri Vivek Madhavlal N.  Pittie\n        \"Suket\", 29-B, Dongerisi Road \n      \n\n        Malabar Hill, Bombay 400006.\n   \n\n\n\n     8.Smt. Sulchana M.  Pittie\n        r\/o.  \"Suket\", 29-B, Dongerisi Road \n        Malabar Hill, Bombay 400006.                     ....APPELLANTS.\n\n\n\n\n\n                                    VERSUS\n\n\n\n\n\n     The State of Maharashtra,\n     through Collector, Amravati,\n     District - Amravati.                               ....RESPONDENT\n                                                                       . \n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 17:46:54 :::\n                                 3\n\n\n\n\n                                                                        \n                                       WITH\n\n\n\n\n                                                \n     FIRST APPEAL No.53\/2001.\n\n\n\n\n                                               \n     The State of Maharashtra,\n     through Land Acquisition Officer,  \n     Amravati.                                               ....APPELLANT.\n\n                                      VERSUS\n\n\n\n\n                                   \n                    \n     1.Late Narayanlal Bansilal\n        (through Shri Madhavlal N. Pittie\n        receiver of the immovable properties),\n                   \n        (Appointed in the High Court Suit\n        No. 224 of 1961) Great Social\n        Building, 4th Floor, 60 Sir P.M. Road,\n        Fort, Bombay 400001.\n      \n\n\n     2.Smt. Rajkumari N. Pittie 4-C III Plazzo,\n   \n\n\n\n        Little Gibbs Road, Malabar Hill, \n        Bombay 400 006 (Deleted as per \n        Order dated 24.6.1999 \n        below Exh.254). \n\n\n\n\n\n     3.Shri Balkrishnalal N. Pitte, \n        (HUF), Flat No.12, \"Palmera\" \n        Altamount Road, Bombay 400026  \n        (Dead) \n\n\n\n\n\n     3.I) Mrs. Radhabai B.Pitte.\n            Flat No.12, Palmera, Bombay 400026.\n\n\n     3-II)Mrs. Veena N. Raia,\n            R\/o. Samudra Mahal, 17th Floor,\n            417, Dr. Annie Besant Road,\n\n\n\n\n                                                ::: Downloaded on - 09\/06\/2013 17:46:55 :::\n                              4\n\n\n            Worli, Bombay - 4400018.\n\n\n\n\n                                                                       \n     4.Shri Madhusudanlal N.  Pittie\n\n\n\n\n                                               \n        c\/o. Madhavlal Narayanlal Pitte,\n        r\/o. Harinagar Sugar Mills, World Trade\n        Centre, Kolaba, Mumbai. \n        L.R. Of R.No.4.\n\n\n\n\n                                              \n        Smt. Damyantibai Madhusudanlal Pittie,\n        29-B, Dongerisi Road \n        Malabar Hill, Mumbai 400006. \n\n     4.(Shri Dadhusudanlal N.  Pittie\n\n\n\n\n                                 \n        (H.U.F), \"Suket\", 29-B, Dongerisi Road \n        Malabar Hill, Bombay 400006). \n                  \n     5.Shri Madhavlal N.  Pittie\n        (HUF), \"Suket\", 29-B, Dongersi Road \n                 \n        Malabar Hill, Bombay 400 006. \n\n     6.Shri Madhavlal N.  Pittie\n        (IND), \"Suket\", 29-B, Dongersi Road \n      \n\n        Malabar Hill, Bombay 400006. \n   \n\n\n\n     7.Smt. Sulochana M.  Pittie\n        \"Suket\", 29-B, Dongersi Road \n        Malabar Hill, Bombay 400006. \n\n\n\n\n\n     8.Shri Vivek Madhavlal  Pittie\n        \"Suket\", 29-B, Dongersi Road \n        Malabar Hill, Bombay 400006.                    ....RESPONDENTS \n\n\n\n\n\n                             --------------------------\n                     Mr.  C.N. Korde, Senior Advocate \n              with  Mrs. Pangarkar, Advocate for Landowners.\n               Mr. J.J. Chandurkar, Advocate  for legal heirs \n                of deceased Madhusudanlal in both Appeals.\n          Mr. R.B. Deo, Special Counsel with Shri  Ambarish Joshi, \n                               A.G.P. for State.\n                              -----------------------\n\n\n\n\n                                               ::: Downloaded on - 09\/06\/2013 17:46:55 :::\n                                   5\n\n\n\n\n                                                                             \n                               CORAM :  B. P. DHARMADHIKARI\n\n\n\n\n                                                     \n                                            AND A.P.BHANGALE, JJ.\n<\/pre>\n
     Date of reserving the Judgment. -                    02.09.2011\n     Date of Pronouncement.          -                    28.09.2011\n\n                   \n\n\n\n\n                                       \n     JUDGMENT.    (Per B.P. Dharmadhikari, J)\n                        \n<\/pre>\n
     1.           Judgment   dated   31\/12\/1999   delivered   by   Joint   Civil <\/p>\n
     Judge,   Senior   Division,   Amravati   in   Reference   proceedings   land <\/p>\n
     acquisition   case   13   of   1988   under   Section     18   of   the   Land <\/p>\n
     Acquisition Act,1894 (hereinafter referred to as “the 1894 Act” for <\/p>\n
     short),   is   assailed   by   both   parties   i.e.,   the   landowners   as   also <\/p>\n
     acquiring authority in these appeals under Section  54 thereof. Said <\/p>\n
     reference   arose   out   of   award   dated   16\/7\/1987   in   L.A.C.   3\/LAQ-\n<\/p>\n
     47\/83\/84 made by the Land Acquisition Officer for and   on behalf <\/p>\n
     State of Maharashtra. Notification under Section  4 of the 1894 Act <\/p>\n
     was   published   on   19\/2\/1984.   While   admitting   First   Appeal   No. <\/p>\n
     53\/2001   filed   by   State,   this   Court   on   12\/2\/2001   granted   stay   in <\/p>\n
     terms   of   prayer   clause   (I)   of   Civil   Application   No.656\/2001   on <\/p>\n
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\n                                      6<\/span><\/p>\n
     appellant- State depositing decreed amount with Trial Court within <\/p>\n
     period of 8 weeks. That order continues to operate even today.\n<\/p>\n
     2.            Civil   Application   (F)   No.   2282\/2011   is   taken   out   by <\/p>\n
     landowners pointing out death of appellant no.4 on 4th August 2011 <\/p>\n
     and seeking leave to amend as per its schedule to bring his legal heir <\/p>\n
     on   record.   State   government   is   also   asked   to   effect   similar <\/p>\n
     amendment   in   its   First   Appeal   No.   53\/2001,   though   no   formal <\/p>\n
     application   is   as   yet   moved   by   it.   Shri   J.J.   Chandurkar,   learned <\/p>\n
     Counsel   for   said   legal   heir   viz.   Smt.   Damyanti   states   that   he   is <\/p>\n
     appearing for her in both the matters. State Government has without <\/p>\n
     prejudice   to   its   rights   to   verify   the   position,   sought   oral   leave   to <\/p>\n
     substitute similarly.  Accordingly, We permit respective Appellants to <\/p>\n
     amend their respective memo of appeals forthwith.\n<\/p>\n
     3.            Plot no. 1 Nazul Survey no. 14 of Amravati town formed <\/p>\n
     subject matter of acquisition. The area as per last notification under <\/p>\n
     Section     17   (1)   dated   18\/7\/1985   is   54,168.86   Sq.   Mtrs.   and <\/p>\n
     landowners claim it to be 60790 Sq. Mtrs. The award granted them <\/p>\n
     compensation of Rs. 34,67,030\/- towards land, structures, trees and <\/p>\n
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\n                                 7<\/span><\/p>\n
     statutory   benefits.   Trial   Court   or   Reference   Court   found   area <\/p>\n
     acquired to be 59,870 Sq. Mtrs. as per report if Court Commissioner.\n<\/p>\n
     By following  hypothetical  plotting  method  and   using comparable <\/p>\n
     sale instances, it arrived at rate of Rs. 19.50 per sq. ft. for belt-1 <\/p>\n
     plots, Rs. 16.50 per sq. ft. for belt-2 plots and  Rs. 13.70 per sq. ft.\n<\/p>\n
     for belt-3 plots.  Total amount for all three belts thus worked out  by <\/p>\n
     it was  Rs. 74,06,128\/-. It then followed judgment of Hon’ble  Apex <\/p>\n
     Court  reported at AIR 1998 SC 700 (Hasanali Walimchand vs. State  <\/p>\n
     of Maharashtra)<\/a> to deduct 50% towards developments and found Rs.\n<\/p>\n
     37,03,064\/- as value of acquired land.  It also found them entitled to <\/p>\n
     Rs.   17,57,521\/-   towards   costs   of   structures   on   acquired   land, <\/p>\n
     Rs.22,120\/-as value of barbed wire fencing  and  Rs. 2990\/- as value <\/p>\n
     of trees. Out of this Rs. 54,85,895\/- as sum of Rs. 20,30,116\/- was <\/p>\n
     already received by landowners, it granted them balance amount of <\/p>\n
     Rs. 34,55,779\/-. The premises were being used by State for office of <\/p>\n
     Divisional   Commissioner,   Amravati   since   1\/1\/1981   and     on <\/p>\n
     6\/8\/1985 possession was taken by it after invoking urgency clause.\n<\/p>\n
     Trial   Court   therefore   granted   them   compensation   under   Section <\/p>\n
     23(1-A) of the 1894 Act, from 1\/1\/1981 till 16\/7\/1987 i.e., date of <\/p>\n
     award calculated at 12% P.A., on the market value (Rs.14,77,740\/-) <\/p>\n
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\n                                   8<\/span><\/p>\n
     of big bungalow. Said sum given by it is Rs. 11,52,637\/-. It granted <\/p>\n
     them   compensation   at   12%   PA   under   Section   23(1-A)   on   other <\/p>\n
     property   from   6\/8\/1985   till   16\/7\/1987   at  Rs.  9,21,877\/-. It   thus <\/p>\n
     awarded to them total sum of Rs. 75,60,409\/-. It deducted from this <\/p>\n
     total, a sum of Rs. 20,30,116\/- already awarded by land acquisition <\/p>\n
     officer and declared landowners entitled to receive Rs. 55,30,293\/-\n<\/p>\n
     more   with   30%   solatium   on   it   under   Section   23(2),   interest   on <\/p>\n
     balance   costs     and     solatium   at   9%   on   it   from   16\/7\/1987   to <\/p>\n
     15\/7\/1988 and at 15% thereafter as per Section 28\/34 of the 1894 <\/p>\n
     Act. Before us there is no dispute that direction to pay solatium on <\/p>\n
     Section 23(1-A) grant is unsustainable.\n<\/p>\n
     4.           Shri Korde, learned Senior Counsel   for landowners has <\/p>\n
     strongly  relied  upon  the  appointment of  district  inspector  of  land <\/p>\n
     records   as   court   commissioner   to   find   out   exact   area   of   land <\/p>\n
     acquired   to   show   that   land   in   excess   not   covered   under   area   in <\/p>\n
     award under Section  11 is also found acquired and  hence, grant of <\/p>\n
     compensation   by   LAO   is   incorrect.   He   further   argues   that <\/p>\n
     landowners   and   LAO   have   both   resorted   to   hypothetical   plotting <\/p>\n
     method   to   determine   compensation   but   then   Trial   Court   has   for <\/p>\n
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\n                                    9<\/span><\/p>\n
     valid reasons held report\/lay-out drawn by landowners expert Shri <\/p>\n
     Gandhi at Ex. 195 more reliable. In this view of matter, it could not <\/p>\n
     have   discarded   the   belting   scheme   used   by   Shri   Gandhi   and <\/p>\n
     substituted it by its own estimate. The placement of acquired land, <\/p>\n
     its   more   altitude   and     therefore   superior   position   in   market   as <\/p>\n
     compared to adjacent lands is all narrated in detail by Shri Gandhi <\/p>\n
     and Trial Court overlooked it for no valid reason. Layout of Sant <\/p>\n
     Sadguru   Sitaram   Maharaj   Sansthan   (SMS   layout)   Public   Trust   in <\/p>\n
     plot no. 2 along with other plots in the vicinity have been used by <\/p>\n
     Shri   Gandhi   as   measure   to   determine   the   market   value.   The <\/p>\n
     placement of said land is much better than adjacent plot no. 2 where <\/p>\n
     a layout has  come  up  in  1982\/1983  and sales  of plots  from  that <\/p>\n
     layout   are   treated   as   comparable   by   Trial   Court.   Shri   Gandhi <\/p>\n
     therefore  made  25%   allowance   over   and     above   price   fetched  by <\/p>\n
     plots   in   that   layout   and   Trial   Court   could   not   have   ignored   it.\n<\/p>\n
     Similarly, the layout in plot no. 1(acquired land) has got frontage on <\/p>\n
     public roads on three sides  and hence belting of all such plots in <\/p>\n
     layout   with   said  benefit  in   first  belt  by  him   could  not  have   been <\/p>\n
     faulted with. Deductions ordered by it are at variance with report of <\/p>\n
     said expert and when evidence on record proved need of no such <\/p>\n
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\n                                    10<\/span><\/p>\n
     expenditure here, the Trial court could not have invoked the thumb <\/p>\n
     rule.   In   any   case,   looking   to   instances   of   or   nature\/extent   of <\/p>\n
     development in adjacent layouts, deductions of 50% from land price <\/p>\n
     determined   is   exorbitant   and   arbitrary.   He   also   places   strong <\/p>\n
     reliance on evidence of Shri Ganeriwal the managing trustee of SMS <\/p>\n
     Trust. The distance   between plots in that layout and   in proposed <\/p>\n
     plots in acquired land is only 400 meters. Shri Gandhi has worked <\/p>\n
     out   market   price   of   plots   in   acquired   land   after   calculating   the <\/p>\n
     annual escalation, made allowance for valid reasons and assigned <\/p>\n
     grounds for no development expenditure. He has not been subjected <\/p>\n
     to any cross-examination in this regard and  hence, Trial Court erred <\/p>\n
     in not acting upon that evaluation. He points out that Shri Gandhi <\/p>\n
     has   already   deducted   about   25%   of   land-area   for   development <\/p>\n
     activities like roads, garden etc. Hence, further deductions of 50% <\/p>\n
     flat   again   by   Trial   Court   is   not   supported   by   records   and <\/p>\n
     unwarranted. According to learned Senior Counsel landowners have <\/p>\n
     suffered total deductions of 75% thereby. Shri Gandhi’s layout held <\/p>\n
     as better  by Trial  Court needed to be acted upon  by maintaining <\/p>\n
     belting   exercise   therein   as   it   is.   His   reasons   for   not   making   any <\/p>\n
     adjustment towards deferment factor also needed acceptance. Plans <\/p>\n
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\n                                  11<\/span><\/p>\n
     of Shri Gandhi and  other plans on record are relied upon to show <\/p>\n
     relative   placement   and   to   justify   treatment   thereto   for   valuation.\n<\/p>\n
     Plots 53 to 63 placed behind first row must be treated as in 2 nd belt.\n<\/p>\n
     It is urged that plots shown in yellow and  on Chilamshah wali road <\/p>\n
     must be valued at rate between 1st belt rate and  2nd belt rate.\n<\/p>\n
     5.           Learned Senior Counsel then pointed out how the expert <\/p>\n
     has applied a well known method of “sinking fund” and used CSR <\/p>\n
     rates by adding 25% to it to match the type of construction available <\/p>\n
     while working  out its  cost. The scientific  method adopted by him <\/p>\n
     have not been doubted in cross by the State. It is further contended <\/p>\n
     that   evidence   of   Shri   Deshmukh,   LAO   is   biased   and     hence,   not <\/p>\n
     acceptable. Similarly, though other witness Shri Kale accepted that <\/p>\n
     structures may have future life of 30 to 40 years, he in calculations <\/p>\n
     adopted it to be 7 years only. His evidence is also urged to be biased <\/p>\n
     and  his failure to support his computation in Court despite grant of <\/p>\n
     adjournments is pressed into service to discard it. Comparative chart <\/p>\n
     prepared  to show  at  glance  the  working  of  costs  of  structures by <\/p>\n
     following sinking fund method (used by Shri Gandhi) and constant% <\/p>\n
     method (used by State’s witness Shri Kale) to age and future life (30 <\/p>\n
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\n                                    12<\/span><\/p>\n
     years)   of   respective   structures   mostly   due   to   Kale’s   evidence   that <\/p>\n
     future life was of about 30 to 40 years is also pressed into service.\n<\/p>\n
     6.            He   has   placed   reliance   upon   various   judgments   of <\/p>\n
     Hon’ble     Apex   Court   to   substantiate   his   contentions   and     to <\/p>\n
     demonstrate how the Trial Court has misdirected its exercise. (2011) <\/p>\n
     6   SCC   47   –   (Trishala   Jain   and   another   vs.   State   Of   Uttarchal   and  <\/p>\n
     another)  is   relied   upon   to   explain   the   principles   of   guesstimate.\n<\/p>\n
     (2009) 15 SCC 769 (Lal Chand vs. Union of India and   another)  is <\/p>\n
     shown to justify need of proper deduction for development costs and <\/p>\n
     its extent.   (2010) 1 SCC 444 – (Subh Ram and   Others vs. State of  <\/p>\n
     Haryana and  another) is cited to urge that 40% deduction is ideal in <\/p>\n
     such   matters.     He   invited   attention   to   impugned   judgment   in   an <\/p>\n
     attempt to demonstrate  those  errors.  He  fairly stated  that  though <\/p>\n
     damages awarded for period from 1\/1\/1981 till 19\/2\/1984 under <\/p>\n
     Section   23(1-A) of the 1894 Act are   unsustainable, he supported <\/p>\n
     grant by pointing out the views expressed relief given by Hon’ble  3 <\/p>\n
     Judges   of   Apex   Court  (2004)   4   SCC   79     (R.L.   Jain   vs.   DDA   and  <\/p>\n
     others),  even for such loss of possession and need to award rental <\/p>\n
     compensation   in   such   facts.   The   Reference   Court   should   have <\/p>\n
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\n                                  13<\/span><\/p>\n
     granted damages in lieu of rent lost and interest at the bank rate <\/p>\n
     upon the sum of damages. Similar view reached in  (2003) 7 SCC <\/p>\n
     448 (para 3 and  9) (State of Maharashtra and  others vs. Maimuma <\/p>\n
     Banu and  others) is also shown. (2005) 12 SCC 443–(para 8 ) (Land <\/p>\n
     Acquisition   Officer   and     Asst.   Commissioner   vs.   Hemanagouda   and  <\/p>\n
     another) is also pressed into service and  it is contended that as all <\/p>\n
     relevant   material   is   available,   remand   for   that   purpose   is   not <\/p>\n
     necessary.   How   this   Court   has   granted   interest   for   period   and <\/p>\n
     possession  prior to Section  4 notification  is  brought to our notice <\/p>\n
     through  2009 (1) Mah.L.J. 299 (para 5) (State Of Maharashtra vs.  <\/p>\n
     Bhaskar Namdeo Wagh).  Reliance<\/a> is being placed on ground no. 38 <\/p>\n
     in memo of appeal to argue that rental compensation at 12% needed <\/p>\n
     to be calculated on Rs. 16,82,614\/-without any deductions. He has <\/p>\n
     added that if land sufficient to support the big bungalow is  worked <\/p>\n
     out by using FSI\/FAR to be “1”, the proportionate   land  needed is <\/p>\n
     21,795 Sq. ft. and in that eventuality, 12% of Rs. 15,97,651\/- is to <\/p>\n
     be   awarded   as   rental   compensation.   In   any   case,   grant   of <\/p>\n
     compensation at 12% is reasonable and as premises were being used <\/p>\n
     for   non-residential   purposes,   a   higher   rate   is   warranted.   He   also <\/p>\n
     states that 12% additional component also should have been given <\/p>\n
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\n                                     14<\/span><\/p>\n
     on remaining property for the period from 19\/2\/1984 to 6\/8\/1985.\n<\/p>\n
     7.            Shri Rohit Deo, learned Special Counsel has pointed out <\/p>\n
     that   entire   area   of   plot   no.   1   as   per   old   property   card   has   been <\/p>\n
     acquired   and landowners have failed to demonstrate their title to <\/p>\n
     anything in excess of area in notification under Section 17 (1) dated <\/p>\n
     18\/7\/1985 i.e., 54,168.86 Sq. Mtrs.   Landowners claimed it to be <\/p>\n
     60790   Sq.   Mtrs.   and     Trial   Court   or   Reference   Court   found   area <\/p>\n
     acquired to be 59,870 Sq. Mtrs. as per report if Court Commissioner.\n<\/p>\n
     He argues that plot area recorded in property register i.e., settlement <\/p>\n
     records   way back in 1925 ought to have been accepted. Property <\/p>\n
     cards at Exh. 247\/248 reveal 54,000 Sq. Mtrs. area. The landowners <\/p>\n
     had\/have with them the original sale-deed which could have shown <\/p>\n
     their entitlement to receive compensation for said area. As sale-deed <\/p>\n
     is not produced,an adverse inference is\/was warranted. Though the <\/p>\n
     report  Exh.24   of  DILR   appointed   as  Court  Commissioner   was not <\/p>\n
     objected by State, that report does not establish title of Landowners <\/p>\n
     to 59,870 Sq. Mtrs.\n<\/p>\n
     8.            He pleads that there was no question of giving any rental <\/p>\n
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\n                                   15<\/span><\/p>\n
     compensation   for  period   prior  to  Section  4 notification  under  the <\/p>\n
     1894  Act.   The  rental  compensation   for   period  from  1\/1\/1984  till <\/p>\n
     Section   4   notification   on   19\/2\/1984   is   not   payable   in   any <\/p>\n
     proceedings under the 1894 Act.   Judgment of Hon’ble  Apex Court <\/p>\n
     in R.L. Jain vs. DDA and  Others (supra), does not lay down any law <\/p>\n
     on these lines. Observations of Hon’ble  Apex Court are under Article <\/p>\n
     142 of Constitution of India. According to him reference to Section <\/p>\n
     48   of   the   1894   Act   therein   shows   that   dispossession   therein   was <\/p>\n
     traceable     to   that   Act.   Other   judgments   relied   upon   by   the <\/p>\n
     landowners   also   show   same   features.   By   placing   reliance   upon <\/p>\n
     (2002) 1 SCC 142  (para 7)  (Siddappa Vasappa Kauri vs. Special Land <\/p>\n
     Acquisition Officer),  he points out that no compensation is payable <\/p>\n
     for   period   prior   to   issuance   of   Section   4   notification   and   Section <\/p>\n
     23(1-A) is held to be unambiguous in this respect. He points out that <\/p>\n
     here   possession   was   never   with   Landowners   and   premises   were <\/p>\n
     allotted under C.P. and  Berar Rent Control Order,1949 to State for <\/p>\n
     office of Divisional Commissioner and accordingly establishment of <\/p>\n
     Divisional   Commissioner   entered   possession   on   1\/1\/1981   and <\/p>\n
     continued till 6\/8\/1985 when it was taken under the 1894 Act. In <\/p>\n
     1981,   the   acquisition   was   not   even   in   contemplation.   For   that <\/p>\n
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\n                                   16<\/span><\/p>\n
     possession, fair rent or standard rent could have been claimed before <\/p>\n
     appropriate forum and not in these proceedings. Quashing or setting <\/p>\n
     aside   or   cancellation   of   that   allotment   by   High   Court   does   not <\/p>\n
     render it a possession pursuant to the 1894 Act.\n<\/p>\n
     9.           Coming down heavily on evidence\/report of Shri Gandhi, <\/p>\n
     he points out that being a paid expert, his evidence is not impartial.\n<\/p>\n
     It also lacks relevant material which might have formed its base and <\/p>\n
     as that material is not produced for perusal, his opinion can not be <\/p>\n
     appreciated by this Court. Section  45 of Evidence Act is pressed into <\/p>\n
     service.   The report refers to experience of Shri Gandhi as ground <\/p>\n
     but that  experience  and   knowledge is  not proved on  record and <\/p>\n
     hence, Shri  Gandhi  can  not be  relied upon as  an expert. As area <\/p>\n
     considered by him in his report\/layout at Ex. 195 is itself drastically <\/p>\n
     reduced,   his   layout   is   rendered   irrelevant.   Layout   looked   into   by <\/p>\n
     State is based upon accurate area and   hence Trial Court ought to <\/p>\n
     have   been   accepted   it   as   base   for   calculations.   In   alternative,   he <\/p>\n
     urged that area of layout of Shri Gandhi acted upon by Trial Court <\/p>\n
     needs   to   be   scaled   down   proportionately   and   used   as   base   but <\/p>\n
     subject   to   other   arguments   about   market   rate,   deferred     value <\/p>\n
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\n                                   17<\/span><\/p>\n
     adjustment, development costs etc. <\/p>\n
     10.          It is pointed out that earlier two reports of said expert at <\/p>\n
     Exh. 204 dated 17\/1\/1985 and Exh. 205 dated 24th  October,1985 <\/p>\n
     reveal   inconsistent   and     contrary   position   which   is   sufficient   to <\/p>\n
     impeach   his   credit   and     to   ignore   his   report   Exh.   195.   Due   to <\/p>\n
     absence of title, Shri Gandhi has claimed flat Rate of Rs. 15 per Sq.\n<\/p>\n
     feet for excess land.   Comparison of these reports is done to show <\/p>\n
     change in approach to favour his clients viz. Landowners. Last report <\/p>\n
     Ex. 195 is prepared just 3 to 4 months prior to his deposition by Shri <\/p>\n
     Gandhi. It is urged that obvious effort is to cure material defect and <\/p>\n
     to adjust development charges. It is nothing but like an information <\/p>\n
     booklet or  brochure  prepared  at the  instance   of   a  builder  to  lure <\/p>\n
     customers.  He relies upon (1995) 2 SCC 305–( para 15,16) (P. Ram <\/p>\n
     Reddy and  Others vs. Land Acquisition Officer, Hyderabad Development  <\/p>\n
     Authority)<\/a> to contend that even if it is presumed (without admitting <\/p>\n
     it) that there is ineffective cross-examination, still the law courts are <\/p>\n
     obliged to test probabilities  and  such improved version can not be <\/p>\n
     mechanically used. In  AIR 1952 SC 214 (para 22)   (Bhagwan Singh <\/p>\n
     vs. State of Punjab(I))  Hon’ble  Apex Court shows  how the Court has <\/p>\n
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\n                                   18<\/span><\/p>\n
     to   compare   the   later   statements   of   Shri   Gandhi   with   his   earlier <\/p>\n
     admitted   reports   when   all   these   mutually   inconsistent <\/p>\n
     reports\/statements are admitted and  available on record. Exh. 195, <\/p>\n
     therefore     must   be   rejected.   Credit   of   such   witness   bringing   on <\/p>\n
     record   all   these   3   reports   is   impeached   under   Section   155(3)   of <\/p>\n
     Evidence Act. Trial Court has erred in acting upon deposition of such <\/p>\n
     witness. Want of material on record to sustain findings of expert is <\/p>\n
     found   in  1996(3)All   MR   507   (para   17)   (Government   of   Goa   vs.  <\/p>\n
     Jagannath   V.   Khalap)  enough   by   this   Court   to   lower   him   to   a <\/p>\n
     partisan witness. Thus , according to him the Government valuer has <\/p>\n
     been   erroneously   rejected   as   data   or   calculations   of   costs   is   not <\/p>\n
     produced and as he accepted Shri Gandhi’s  method of calculating <\/p>\n
     depreciation. This observation is urged to be  erroneous as there  is <\/p>\n
     no such acceptance or then conditions subject to which he accepted <\/p>\n
     that method, are overlooked by Trial Court. Shri Kale has not been <\/p>\n
     effectively   cross-examined   and   his   assertions   are   not   even <\/p>\n
     questioned.   Only   because   off-hand   he   could   not   undertake   or <\/p>\n
     explain   the   cost-exercise   undertaken,   he   could   not   have   been <\/p>\n
     disbelieved. Even if   life of structures is presumed to be 99 to 100 <\/p>\n
     years, depreciation rate would be 1 instead of 1.33 and  it does not <\/p>\n
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\n                                    19<\/span><\/p>\n
     make   material   difference   on   total   compensation   payable   in   that <\/p>\n
     regard.\n<\/p>\n
     11.          In   this   background,   he   takes   up   the   issue   of   land <\/p>\n
     valuation. He states that because of layout on adjacent plot no. 2 of <\/p>\n
     SMS Trust, the comparable sale instances are readily available. Due <\/p>\n
     to proximity, both in time and location, Trial Court has rightly found <\/p>\n
     it proper to rely on it. The consistent views of Hon’ble  Apex Court in <\/p>\n
     such situation permit escalation of 10% every year from date of sale <\/p>\n
     deed   till   date   of   Section     4   notification.   As   alleged   expert   Shri <\/p>\n
     Gandhi of Landowners has here granted it at compound rate of 25% <\/p>\n
     annually,   that   too   from   the   date   of   agreement   for   sale,   the   Trial <\/p>\n
     Court   has   rightly   rejected   it.   Judgment   of   this   Court   reported   at <\/p>\n
     2008(3) All MR 379 (para-7 and 8) (State Of Maharashtra vs. Punja  <\/p>\n
     Trambak Lahamage)<\/a>  is  relied  upon  to contend  that  date  of  actual <\/p>\n
     transfer of title ie sale-deed is only decisive.   Shri Gandhi could not <\/p>\n
     have   made   allowance   of   25%   over   the   sale-deeds   in   SMS   layout <\/p>\n
     because of alleged superiority of plot 1 and when Landowners have <\/p>\n
     sought to discredit State witness Shri Deshmukh’s stand that SMS <\/p>\n
     layout is located near city, same logic must hold good to deny such <\/p>\n
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\n                                    20<\/span><\/p>\n
     allowance. Evidence of Shri Deshmukh is not false and   as he was <\/p>\n
     LAO,   he   proved   to   be   little   obstinate   about   his   award   and <\/p>\n
     calculations. He points out that law has always recognized as special <\/p>\n
     the plots on highways and in 1984-85, Chilamshah Wali Road was a <\/p>\n
     “Kuchha   Road”.   Hence,   Trial   Court   has   rightly   refused   to   accept <\/p>\n
     plots   on   this   kuchha   road   as   in   belt-1.     He   also   states   that   30% <\/p>\n
     solatium   can   not   be   awarded   on   12%   component   under   Section <\/p>\n
     23(1-A).  Subh   Ram   and     Others   vs.   State   of   Haryana   and  <\/p>\n
     another( supra) (paras 9,11,12 to 14, 24 and  32) as also Lal Chand <\/p>\n
     vs. Union of India and  another (supra)  (paras 15 and 17) are pressed <\/p>\n
     into service to buttress contention that 50% to 75% is the standard <\/p>\n
     range of deductions in such cases.\n<\/p>\n
     12.           In reply arguments, Shri   Korde, learned Senior Counsel <\/p>\n
     has   contended   lands   received   in   possession   by   State   from <\/p>\n
     Landowners has to be decisive in the matter of computation of area <\/p>\n
     relevant for determination of compensation. Emphasis of notification <\/p>\n
     declaring intention  to acquire is on entire plot no. 1 and  its area is <\/p>\n
     therefore   secondary.  Even  plan   prepared  by  Mr.  Watkar   for  State <\/p>\n
     Government   is   relied   upon   with   argument   that   there   is   only <\/p>\n
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\n                                      21<\/span><\/p>\n
     mathematical error in calculation due to irregular area of plot no. 1.\n<\/p>\n
     It is urged that if State is happy with acquisition of notified area, <\/p>\n
     balance   land   over   and     above   it   must   be   left   intact   on   spot   in <\/p>\n
     possession of Landowners. If this can not be done, they must receive <\/p>\n
     compensation for entire area as per report of Court Commissioner.\n<\/p>\n
     When Shri Deshmukh for State  has accepted acquisition  of whole <\/p>\n
     plot   no.   1,   the   dispute   about   correctness   or   otherwise   of   area <\/p>\n
     recorded in revenue\/property cards is irrelevant. He further points <\/p>\n
     out   that   title   of   Landowners   to   said   plot   is   not   in   dispute   at   all.\n<\/p>\n
     While   making   award   under   Section     11,   Collector\/State   has   to <\/p>\n
     declare true area of acquired land and  it is subject to adjudication <\/p>\n
     under   Section     18   thereof.   Landowners   prayed   appointment   of <\/p>\n
     commissioner to resolve this dispute on 7\/5\/1991 and   vide order <\/p>\n
     passed below Exh. 21,  Trial  Court  granted it.  This  order was not <\/p>\n
     assailed  by  the   State.   Thereafter,  spot  was   surveyed  on   2nd  to  4th <\/p>\n
     March, 1993 and  report came to be filed on 8\/7\/1993. Trial Court <\/p>\n
     fixed the case on 12\/8\/1993 for raising objection and then it was <\/p>\n
     adjourned to 4\/9\/1993. As no body raised any objection to it, matter <\/p>\n
     proceeded further to the stage of “issues”. Even otherwise no error <\/p>\n
     or prejudice is pointed out by the State and State can not take land <\/p>\n
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\n                                   22<\/span><\/p>\n
     for free. Earlier survey by Shri Watkar on 18-20 February, 1984 was <\/p>\n
     behind the back of Landowners and  with undue haste. Evidence of <\/p>\n
     Shri Deshmukh is relied upon in support.\n<\/p>\n
     13.          Learned Senior Counsel  states that report of expert Shri <\/p>\n
     Gandhi   just  before   recording   his   evidence  is   in  lieu  of  a  detailed <\/p>\n
     examination in chief to save time and  labour. He has been subjected <\/p>\n
     to   cross-examination   to   the   extent   necessary   by   State.   His   earlier <\/p>\n
     reports  Exh. 204  and   205  were  for  use  of  LAO and Exh.  205 is <\/p>\n
     corrigendum to Ex. 204. Why there is slight change in mode and <\/p>\n
     manner of computation of development charges is   fully explained <\/p>\n
     by him in Ex. 195. Hence, in this background, effort made by Shri <\/p>\n
     Deo, learned Counsel to doubt his veracity for the first time before <\/p>\n
     this Court needs no cognizance. Had he been put these contentions <\/p>\n
     in cross before the Trial Court, appropriate justification could have <\/p>\n
     come on record. Though Shri  Korde, learned Senior Counsel stated <\/p>\n
     that   he   would   not   like   to   be   too   technical   in   this   respect   as <\/p>\n
     Ex.204\/205 available in writing were not put to Shri Gandhi, still, <\/p>\n
     principles of natural justice prohibit such condemnation of witness.\n<\/p>\n
     He points out that Shri Gandhi has not scaled down expenditure on <\/p>\n
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\n                                  23<\/span><\/p>\n
     development to make room for provision of developer’s profits. AIR <\/p>\n
     1988   SC   1652   (para   4)   (Chimanlal   Hargovinddas   vs.   Special   Land <\/p>\n
     Acquisition   Officer,Poona   and<\/a>     another)  is   pressed   into   service   to <\/p>\n
     substantiate these contentions. It is contended that judgment in case <\/p>\n
     of   State Of Maharashtra vs. Punja Trambak Lahamage<\/a> (supra) (para <\/p>\n
     7) cannot be construed as laying down a blanket proposition that in <\/p>\n
     all  facts,  date  of  agreement needs   to be  ignored.  It  is  urged that <\/p>\n
     responsible   judicial   officer   like   joint   charity   commissioner <\/p>\n
     functioning under the Bombay Public Trust Act,1950 has ascertained <\/p>\n
     market value on the relevant date on which SMS Trust invited offers <\/p>\n
     and     then   sanction   to   sell   under   Section     36   thereof   has   been <\/p>\n
     accorded.   Judgment   of   learned   Single   Judge   of   this   Court   in <\/p>\n
     Arunodaya Prefab vs. M.D. Kambli<\/a> ( Misc. Petition nos.  415 and  485 <\/p>\n
     of 1974 decided on 17\/11\/1978 at Bombay) -[para 22], is pressed <\/p>\n
     into service for said purpose. A separate note explaining calculation <\/p>\n
     error due to mistake in finding out time-lag between sell-agreements <\/p>\n
     in SMS layout and  19\/2\/1984 is also placed on record. Attention is <\/p>\n
     invited to sale instances on record to demonstrate that annual hike <\/p>\n
     of 25% by Shri Gandhi is not erroneous or perverse. Chart Annex. G <\/p>\n
     with Exh. 195 is relied upon. It is urged that material not available <\/p>\n
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\n                                    24<\/span><\/p>\n
     in 1985 has been utilized while preparing report at Exh. 195 and as <\/p>\n
     such, no  fault has  been  shown  in  it.  Depreciation  of structures is <\/p>\n
     argued to be a subjective factor and a prospective buyer is bound to <\/p>\n
     evaluate utility of strong structure still standing on plot no. 1. It is <\/p>\n
     urged that such technical concepts can not be used in present facts <\/p>\n
     when   witness   for   State   has   himself   disclosed   future   life   to   be   40 <\/p>\n
     years. Hence, charts prepared later by Landowners and submitted to <\/p>\n
     this   Court   must   be   accepted   to   find   out   correct   valuation   of <\/p>\n
     structures.     At   the   end   of   his   arguments,   learned   Counsel   on <\/p>\n
     2\/9\/2011   stated   that   there   is   no   annual   compounding   by   Shri <\/p>\n
     Gandhi at 25% and  his earlier statements on these lines need to be <\/p>\n
     ignored.\n<\/p>\n
     14.          Shri   Deo,   learned   counsel     again   attempted   to <\/p>\n
     demonstrate   that   Shri   Gandhi   has   not   given   any   explanation   for <\/p>\n
     bringing down  drastically the development charges in Ex. 195. In <\/p>\n
     Exh. 204, salable area of plot 1 considered is 4,98,100 Sq. Mtrs. with <\/p>\n
     Rs. 77,50,767\/- as its value. In Exh. 195, said area comes down to <\/p>\n
     4,80,522 Sq. Mtrs. while its price rises to Rs. 91,78,480\/-.  He points <\/p>\n
     out that Settlement Map of 1927 itself shows area of plot no. 1 as <\/p>\n
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\n                                 25<\/span><\/p>\n
     acquired and   the Landowners have made no efforts to correct it.\n<\/p>\n
     Even to establish possession on such excess land, except for report of <\/p>\n
     Court Commissioner at Ex. 24, there is no other material on record.\n<\/p>\n
     15.         Briefly   stated,   the   following   are   the   points   in   dispute <\/p>\n
     between parties:–\n<\/p>\n
           A)
\n                     igFor what area, the Landowners are entitled to claim
\n                       compensation?<\/p>\n
           Answer-     -For 54,168. 86 Sq. Mtrs.\n<\/p><\/blockquote>\n
           B)          Are they entitled to claim rental compensation or
\n                       damages for period prior to Section 4 notification  <\/p>\n
                       i.e., from 1\/1\/1981 till 19\/2\/1984?\n<\/p><\/blockquote>\n
           Answer–  No.
\n           C)          At  what   rate   compensation   for   land   needs   to  be
\n                       granted?\n<\/p><\/blockquote>\n
           Answer– Rs. 4311991\/-\n<\/p><\/blockquote>\n
           D)          At what rate compensation for big bungalow and
\n                       second bungalow needs to be granted?\n<\/p><\/blockquote>\n
           Answer– Rs. 5,28,000\/-. <\/p><\/blockquote>\n
\n           E)          Relief\/Order:-   See   below   for   details.   Appeal   of  \n                       Landowners   is   dismissed   and     Appeal   of   State  \n                       Government is partly allowed.\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 17:46:55 :::<\/span>\n                                      26<\/span>\n\n\n<\/pre>\n
     16.          As to Point No. A  :-   In  AIR 2004 S.C.3491-(Meher Rusi <\/p>\n
     Dalal   v.   Union   of   India),   Hon’ble     Apex   Court   holds   that   State <\/p>\n
     Government   need   not   acquire   its   own   interest   in   land.   Following <\/p>\n
     observations are important here.\n<\/p><\/blockquote>\n
                      “15.     In our view, the High Court has clearly  <\/p>\n
                  erred   in   setting   aside   the   order   of   the   Special
\n                  Land Acquisition Officer declining a reference.  It <\/p>\n
                  is settled law that in land acquisition proceedings
\n                  the Government cannot and does not acquire its <\/p>\n
                  own  interest.   The  interest   which   is  acquired   in
\n                  land acquisition proceedings are interest of 3rd
\n                  parties. This Court has as far back as in 1955, in  <\/p>\n
                  the   case   of   the   Collector   of   Bombay   v.\n<\/p><\/blockquote>\n
                  Nusserwanji Rattanji Mistri and others, reported
\n                  in   (1955)   1  SCR   1311   negatived   a  contention  <\/p>\n
                  that when land is acquired valuation is made of
\n                  all interest thereon including the interest of the
\n                  Government. This Court held as follows :
\n                  “We are unable to accept his —- —- ——- — – – –\n<\/p><\/blockquote>\n
                  ……. ……..   …….   ————— ……   —————
\n                  but only for the acquisition of such interests in
\n                  the   land   as   do   not   already   belong   to   the
\n                  Government.”\n<\/p><\/blockquote>\n
                  With   these   observations,   we   are   in   entire  <\/p>\n
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\n                                 27<\/span><\/p>\n
               agreement.  When   Government   possesses   an <\/p>\n
               interest in land which is the subject of acquisition  <\/p>\n
               under the Act, that interest is itself outside such
\n               acquisition, because there can be no question of
\n               Government   acquiring   what   is   its   own.  An <\/p>\n
               investigation into the nature and value of that
\n               interest   will   no   doubt   be   necessary   for
\n               determining   the   compensation   payable   for   the  <\/p>\n
               interest   outstanding   in   the   claimants,   but   that  <\/p>\n
               would not make it the subject of acquisition. The
\n               language of Section  8 of Act No. VI of 1857 also  <\/p>\n
               supports   this   construction.   Under   that   section,
\n               the lands vest in the Government “free from all
\n               other estates, rights, titles and interests,” which <\/p>\n
               must clearly mean other than those possessed by <\/p>\n
               the Government.  It  is on this understanding of
\n               the section that the award, Exhibit P, is framed.
\n               The   scheme   of   it   is   that   the   interests   of   the  <\/p>\n
               occupants   are   ascertained   and   valued,   and   the
\n               Government is directed to pay the compensation
\n               fixed for them. There is no valuation of the right  <\/p>\n
               of   the   Government   to   levy   assessment   on   the
\n               lands,   and   there   is   no   award   of   compensation
\n               therefor.”\n<\/p><\/blockquote>\n<\/blockquote>\n
     Here, the Landowners have not shown their title to alleged excess <\/p>\n
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\n                                    28<\/span><\/p>\n
     land lying on spot and have also not taken pains to plead or prove <\/p>\n
     any other interest or even legal possession. There is no effort even to <\/p>\n
     seek compensation for any such or other   interest.   The report of <\/p>\n
     DILR ie Court Commissioner does not show title of Landowners to <\/p>\n
     this excess land. It is apparent that when the property card did not <\/p>\n
     contain entire area lying on spot, Landowners ought to have brought <\/p>\n
     on   record   their   title   to   it   by   producing   sale   deed   by   which   they <\/p>\n
     purchased plot no. 1 in  1930.   The settled possession or any right <\/p>\n
     flowing therefrom are not the facets which even find mention.   In <\/p>\n
     absence of such an effort, it is obvious that contention that there is <\/p>\n
     only mathematical error and even plan prepared by Mr. Watkar for <\/p>\n
     department  shows  area  in  excess   of   what  is  recorded  in  property <\/p>\n
     card   does   not   require   more   consideration.   The   Trial   Court   has <\/p>\n
     erroneously   found   the   acquired   area   to   be   59,870   Sq.   Mtrs.   or <\/p>\n
     6,44,440 Sq. feet. There is no material on record to demonstrate title <\/p>\n
     of  Landowners  to  more  than  54,168.86  Sq.  Mtrs. of  area.  Hence, <\/p>\n
     they can claim compensation only for 54,168. 86 Sq. Mtrs. of land.\n<\/p><\/blockquote>\n
     Point no. A  above is answered accordingly.\n<\/p>\n
     17.           As to Point No. B :- Compensation claimed as analogous <\/p>\n
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\n                                    29<\/span><\/p>\n
     to rental compensation for period from 1\/1\/1981 till 19\/2\/1984 is <\/p>\n
     the next dispute. Section  4  notification is published on 19.02.1984 <\/p>\n
     and     possession   is   taken   on   06.08.1985.     Perusal   of   judgment <\/p>\n
     reported     in   the   case   of  R.L.   Jain   .vrs.   D.D.A   and   others  (supra), <\/p>\n
     relied upon by Shri Korde, learned Senior Counsel in this respect, <\/p>\n
     shows consideration of question whether State Government taking <\/p>\n
     possession before issuance of notification under Section 4[1] of the <\/p>\n
     Land   Acquisition   Act   and   of   entitlement   of   landowners   to   claim <\/p>\n
     interest for such anterior period, in accordance with Section 34 of <\/p>\n
     the   Act.       This   judgment   is   by   Hon’ble   Larger   Bench   and   in <\/p>\n
     paragraph   no.11,   it   has   been   observed   that   notification   under <\/p>\n
     Section 4[1] of the Act is sine qua non for any proceedings under the <\/p>\n
     Act. In paragraph no.12, the words “such compensation”   and “so <\/p>\n
     taking possession” used in Section 34 are interpreted.   The words <\/p>\n
     “so taking possession” are found to make reference to Section 16 or <\/p>\n
     Section 17 and it has been concluded that if possession is taken prior <\/p>\n
     to issuance of notification under Section 4[1] of the Act, it cannot be <\/p>\n
     in accordance with Section 16 or Section 17, will be without any law <\/p>\n
     and   consequently,   cannot   be   recognized   for   the   purposes   of   Act.\n<\/p>\n
     The   words   “from   the   date   on   which   he   took   possession   of   land”\n<\/p>\n
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\n                                     30<\/span><\/p>\n
     appearing   in   Section   28   of   the   Act   are   also   construed   to   mean <\/p>\n
     lawfully taking of possession under Section 16 of Section 17 of the <\/p>\n
     Act.       The   judgment   reported   at  1991   (1)   SCC   262   (Shree   Vijay <\/p>\n
     Cotton   and   Oil   Mills   Ltd.   .vrs.   State   of   Gujarat),     is   found   not   an <\/p>\n
     authority   for   proposition   that   where   possession   is   taken   before <\/p>\n
     issuance of notification  under Section 4[1] of the Act, interest on <\/p>\n
     compensation amount can be awarded in accordance with Section <\/p>\n
     34   of   the   Act   w.e.f.   the   date   of   taking   possession.     In   paragraph <\/p>\n
     no.16, the earlier judgment reported at  1995 [2] SCC 142  (Special  <\/p>\n
     Tahsildar (LA) .vrs. M.A. Jabbar), delivered by Hon’ble two Judges is <\/p>\n
     noted   and   in   that   judgment   the   Hon’ble   Two   Judges   held   that <\/p>\n
     claimant would not be entitled to such additional  sum  for period <\/p>\n
     anterior to publication of notification issued under Section 4[1] of <\/p>\n
     the Act.  Then reference is made to other judgment by Hon’ble Two <\/p>\n
     Judges reported at 1995 [6] SCC 355 (Assistant Commissioner, Gadag <\/p>\n
     Sub   Division,   Gadag   .vrs.   Mathapathi   Basavannewwa   and   others), <\/p>\n
     taking   a   contrary   view   and   holding   owner   entitled   to   additional <\/p>\n
     amount at 12% p.a., has also been noted.  The view taken in Special <\/p>\n
     Tahsildar (supra), is declared to be legally correct and view in case <\/p>\n
     of  Assistant   Commissioner  (supra),   is   overruled.     The   judgment   of <\/p>\n
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\n                                   31<\/span><\/p>\n
     larger Bench of Hon’ble Apex Court in the case of  Sidappa Vasappa <\/p>\n
     Kauri .vrs. Special Land Acquisition Officer (supra),  has also found the <\/p>\n
     view   taken   in   the   case   of  Assistant   Commissioner  (supra), <\/p>\n
     unsustainable.  In paragraph no.16 of  R.L. Jain vs. DDA and  Others <\/p>\n
     (supra),   the   Larger   Bench   has   found   it   just   and   equitable   that <\/p>\n
     Collector, determines rate or damages for use of property to which <\/p>\n
     the   landowner   is   entitled   while   determining   the   compensation <\/p>\n
     amount payable to land owners in respect of possession taken prior <\/p>\n
     to issuance of preliminary notification.  The said view is held to find <\/p>\n
     support in Section 48 of the Act, and it has been further observed <\/p>\n
     that   for   delayed   payment   of   such   amount   for   pre-notification <\/p>\n
     possession, interest at bank rate should be awarded.\n<\/p>\n
     18.          In  Land   Acquisition   Officer   and   Asstt.   Commissioner   .vrs.\n<\/p>\n
     Hemanagouda   and   another(  supra),   the   Hon’ble   Two   Judges   of <\/p>\n
     Hon’ble   Apex   Court   did   not   find   it   appropriate   to   deprive   the <\/p>\n
     landowners   of   their   right   to   receive   rent   or   damages   for   use   of <\/p>\n
     property   prior   to   the   date   of   acquisition.     The   landowners   were <\/p>\n
     given liberty to raise claim therefor before the Collector. In State of <\/p>\n
     Maharashtra and others .vrs. Maimuna Banu and others  (supra), the <\/p>\n
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\n                                   32<\/span><\/p>\n
     Hon’ble Two Judges have considered the grievance of similar placed <\/p>\n
     landowners. Possession was taken by private negotiations.       Facts <\/p>\n
     mentioned in paragraph no.3 show that there non-payment of rental <\/p>\n
     compensation within time prescription   indicated in the resolution <\/p>\n
     amounted to deprivation of valuable property and in paragraph no.8 <\/p>\n
     it is noted that the Act does not provide for payment of any rental <\/p>\n
     compensation.     In   paragraph   no.9   it   was   found     illogical   and <\/p>\n
     improper   to   turn   a   nelson’s   eye   to   the   factual   position   and   the <\/p>\n
     Hon’ble   Apex   Court   noted   that   in   most   of   the   cases,   rental <\/p>\n
     compensation   was   not   paid.   In  State   Of   Maharashtra   vs.   Bhaskar <\/p>\n
     Namdeo Wagh<\/a>   (supra), the Division Bench of this Court has found <\/p>\n
     claimants entitled to 12% component under Section 23[1-A] of the <\/p>\n
     Land Acquisition Act from the date of notification till the award  is <\/p>\n
     passed by the Land Acquisition Officer.   There also possession was <\/p>\n
     taken   before   issuance   of   notification   under   Section   4   of   the   Act.\n<\/p>\n
     There after noticing the judgment of Hon’ble Apex Court in case of <\/p>\n
     Special   Tahsildar    (supra),   the   Division   Bench   has   granted   12% <\/p>\n
     component   from   the   date   of   Section   4   notification   i.e.   from <\/p>\n
     10.07.1993 till the date of award i.e. 12.09.1995.\n<\/p>\n
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\n                                  33<\/span><\/p>\n
     19.          In   present  facts,   admittedly  the   possession   was  already <\/p>\n
     with the office of the Commissioner and that possession was taken <\/p>\n
     under C.P. and Berar House Rent Control Order, as premises were <\/p>\n
     allotted to said office by Rent Controller.   It is no doubt true that <\/p>\n
     subsequently said allotment is  set aside  by this  Court, but that  is <\/p>\n
     after 06.08.1985.   In the  meanwhile, notification  under Section 4 <\/p>\n
     was published on 19.02.1984 and possession thereafter was taken <\/p>\n
     by   invoking   the   urgency   clause   under   Section   17   of   the   Land <\/p>\n
     Acquisition Act on 06.08.1985. It appears that second bungalow on <\/p>\n
     plot 1 was in possession   of some third person and   State took its <\/p>\n
     possession   from   him.   The   Trial   Court   therefore,   has   correctly <\/p>\n
     granted 12% component under Section 23[1-A] of the Act, from the <\/p>\n
     date   of   Section     4   notification   till   taking   of   possession   i.e. <\/p>\n
     06.08.1985.     Possession  delivered earlier  on 1\/1\/1981 was under <\/p>\n
     provisions of C.P. and Berar House Rent Control Order, 1949 and <\/p>\n
     therefore, as a tenant.   That possession was not taken in pursuance <\/p>\n
     of any decision to acquire the said property.  In this situation, claim <\/p>\n
     by landowners has to be either for rent for said period from a tenant <\/p>\n
     or then for mesne profits for wrongful dispossession. It cannot form <\/p>\n
     subject matter of adjudication by Land Acquisition Officer under the <\/p>\n
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\n                                 34<\/span><\/p>\n
     scheme of Land Acquisition Act. In all precedents looked into above <\/p>\n
     the taking of possession could  have been related  to Act and person <\/p>\n
     taking possession were not having any other character like that of <\/p>\n
     tenant.   The   judgments   looked   into   above,   clearly   show   that <\/p>\n
     entitlement to such amount can be only  when possession is taken by <\/p>\n
     initiation   of   land   acquisition   proceedings   i.e.   after   Section   4 <\/p>\n
     notification. Division Bench of this Court in one matter has refused <\/p>\n
     to   interfere   as   period   was   only   of   one   month,   however,   that <\/p>\n
     judgment reported in the case of  State Of Maharashtra vs. Bhaskar  <\/p>\n
     Namdeo Wagh<\/a>   (supra), does not law down any law in this respect.\n<\/p>\n
     We,   therefore,   find   claim   for   compensation   for   period   from <\/p>\n
     01.01.1984   till   19.02.1984   in   present   proceedings   misconceived.\n<\/p>\n
     Point No. B is answered accordingly.\n<\/p>\n
     20.         As to Point No.  C :-   Next  important question  is about <\/p>\n
     market   value   of   land   on   19\/2\/1984.Both   sides   have   adopted <\/p>\n
     hypothetical   plotting   method   and   hence,   the   procedure   to   be <\/p>\n
     followed here is not in doubt. Actual Layout in Plot no. 2 of SMS <\/p>\n
     Trust   is   admitted   position   and   during   arguments   sale   instances <\/p>\n
     therein only have been relied on as comparable. Before proceeding <\/p>\n
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\n                                    35<\/span><\/p>\n
     further,   We   find   it   appropriate   to   briefly   mention   the   location   of <\/p>\n
     Plot. no. 1 as also plot no. 2. Plot no. 1 is bounded on its south by <\/p>\n
     plot no. 2 and it has got abut 5 sides. Its 3 sides have direct frontage <\/p>\n
     on roads   i.e., Mini bye pass, Chilam Shah Wali Road and   a cross <\/p>\n
     road connecting these two roads. Though there is serious challenge <\/p>\n
     to  reading   of  evidence  of   Shri  Gandhi-  witness   of  Landowners as <\/p>\n
     expert   or   then   to   his   testimony   on   merits,   plan   drawn   by   him <\/p>\n
     showing the relative placement of these two plots and   location of <\/p>\n
     sale instances looked into by him is not in dispute. Trial Court has <\/p>\n
     considered this angle  and only challenge before us by Landowners <\/p>\n
     is to its not accepting 10%   hike to plots in hypothetical layout in <\/p>\n
     plot   no.   1   or   to   alleged   superior   placement   of   plot   1   due   to   it <\/p>\n
     altitude  and    commanding  scene. Trial   Court has   treated  sales in <\/p>\n
     SMS layout as comparable and there is no serious dispute about it.\n<\/p>\n
     Last report at Exh. 195 prepared by Shri Gandhi about 3 months <\/p>\n
     prior to his entering the witness box reveals that total road frontage <\/p>\n
     is 2200 running feet and  out of it 1000 feet is on Calcutta -Bombay <\/p>\n
     part   of   mini   bye-pass   –   part   of   national   high-way.   This   plot   is <\/p>\n
     situated  in  Camp-area  which  is  classified  as “A”  area  in  Amravati <\/p>\n
     Municipal   Corporation   formed   later.   Residences   of   District   Judge, <\/p>\n
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\n                                    36<\/span><\/p>\n
     Commissioner, Collector and  bungalows for other judges are in the <\/p>\n
     vicinity in this area only across either the national high way or then <\/p>\n
     Chilam Shah Wali Road. Bungalows of retired army officers are on <\/p>\n
     west side. Being a corner plot, it has roads on three sides and  being <\/p>\n
     a   level   plateau     at   top   of   Camp   area,   enjoys   westerly   breeze, <\/p>\n
     panoramic   view   and     beautiful   surroundings.   Eastern   view   from <\/p>\n
     plateau   remains   permanently   unobstructed.   Offices   of   R.T.O., <\/p>\n
     Collector, Sub-registrar, Post and  Telegraph, Zilla Parishad, P.W.D., <\/p>\n
     Town   Planning   are   all   within   half   kilometer.   Court,   Educational <\/p>\n
     Institutes including Medical College and  District Hospital are within <\/p>\n
     1 to 2.5 Kms. Some shops are stated to be located near this plot and <\/p>\n
     main market is at distance of 2.5 Kms. This description shows that <\/p>\n
     except  for   its   location   at   height,   all   other   features   are   normal.   It <\/p>\n
     appears to be not in populated  but in calm and  quiet surroundings.\n<\/p>\n
     What is market available for small such plots or land of this nature <\/p>\n
     in Amravati is not apparent. Evidence to show price offered     by a <\/p>\n
     willing   buyer   and   tendency   to   pay   more   by   recognizing   these <\/p>\n
     features as special advantages was therefore essential for treating it <\/p>\n
     as a feature necessitating any premium over and  above market rate.\n<\/p>\n
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\n                                   37<\/span><\/p>\n
     21.          The   land   to   be   valued   here   is   huge   piece   and   use   of <\/p>\n
     hypothetical plotting method found necessary in paragraph 19 is not <\/p>\n
     in dispute.     Though before the Trial Court several witnesses were <\/p>\n
     examined to bring on record the relevant sales, in arguments before <\/p>\n
     us the acceptance of sale instances from SMS layout by it is not even <\/p>\n
     assailed by any body. Arguments proceed on the base of those sale <\/p>\n
     instances   only.   Narration   in   this   regard   in   paragraph   24   of   its <\/p>\n
     judgment by it is not even whispered to be perverse. Thus its refusal <\/p>\n
     to   look   into   sale   -deeds   at   Exh.   Nos.   171,171-A,177,177-A,172, <\/p>\n
     173,180 and  175 as the same are of plots located at a distance from <\/p>\n
     acquired land, does not call for any interference. In said paragraph <\/p>\n
     and  in next one it has noticed  that sale instances from just adjacent <\/p>\n
     plot no. 2 of SMS Layout are available and preferred to rely upon it.\n<\/p>\n
     However, Trial Court has used layout prepared by Shri Gandhi and <\/p>\n
     at  Annex. D with his report Exh. 195 and  discarded the layout plan <\/p>\n
     prepared by A.D.T.P. At Exh. 232. Shri Gandhi’s status is challenged <\/p>\n
     before   us   on   several   grounds,   it   is   apparent   that   about   5782   Sq.\n<\/p>\n
     Mtrs.   Area   is   required   to   be   reduced   from   his   drawing.   Reason <\/p>\n
     assigned by Trial Court to prefer it is of better land utilization. This <\/p>\n
     is not demonstrated to be erroneous by the State. It therefore urged <\/p>\n
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\n                                    38<\/span><\/p>\n
     to reduce the land proportionately from area of each belt as arrived <\/p>\n
     at by Trial Court. When hypothetical layout prepared for State by <\/p>\n
     ADTP is found unacceptable for valid reasons and   norm has to be <\/p>\n
     maximum land utilization to cater to the interest of Landowners, We <\/p>\n
     find it proper to accede to this argument of State.\n<\/p>\n
     22.          Perusal of deposition of Anandprasad (Exh.75) on behalf <\/p>\n
     of SMS Trust shows that SMS layout is on comparatively larger piece <\/p>\n
     of land ad-measuring about 7,60,000 Sq. ft.  and little nearer to City.\n<\/p>\n
     Plot no. 1 is beyond plot no. 2 and at a height above plot no. 2. Plot <\/p>\n
     no.   2   is   not   a   plain   ground   but   has   a   slope   towards   west.   The <\/p>\n
     difference in elevation on eastern and  western side is about 20 feet.\n<\/p>\n
     In   1981,   SMS   layout   of   119   residential   and     35   shop   plots   was <\/p>\n
     approved by Amravati Municipal council. Then Trust advertised the <\/p>\n
     plots. On 26\/11\/1981, Joint Charity Commissioner granted approval <\/p>\n
     to SMS Trust to sell 16 shops and  53 residential plots. Accordingly, <\/p>\n
     Sale deeds were executed by the Trust. From buyers who paid the <\/p>\n
     balance   sale   consideration   late   and     sale   deeds   were   therefore <\/p>\n
     executed little later, SMS Trust recovered interest for such delay as <\/p>\n
     per   the   orders   of   Joint   Charity   Commissioner.   In   response   to   2nd <\/p>\n
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\n                                  39<\/span><\/p>\n
     advertisement published in December,1981, offers were received in <\/p>\n
     January, 1982. The Trust found these offers below their expectations <\/p>\n
     and  hence, plots were re-advertised. Application of Trust to sell to <\/p>\n
     these   offerers   was   allowed  by   the   Joint  Charity   Commissioner  on <\/p>\n
     17\/4\/1982. This witness has stated that plot no. 1 of Landowners is <\/p>\n
     superior because of its location. He has also exhibited the sale-deeds <\/p>\n
     and   other documents like advertisement, certified copies of orders <\/p>\n
     of Joint Charity Commissioner and Index-II. His cross-examination <\/p>\n
     only brings on record no construction of any shop on any of its 35 <\/p>\n
     plots   from   1981   till   1995.   His   evidence   has   been   recorded   on <\/p>\n
     22\/7\/1996.   Thus   his   sale   instances   are   supported   by   relevant <\/p>\n
     documents which can not be doubted.\n<\/p>\n
     23.          Whether date of agreements entered into by SMS Trust or <\/p>\n
     then   the   date   of   Sale-deeds   by   them   is   determinative   is   another <\/p>\n
     dispute. According to Shri   Deo,   learned Counsel it is date of sale <\/p>\n
     deed only and  date of agreement can never be relevant. In State Of  <\/p>\n
     Maharashtra   vs.   Punja   Trambak   Lahamage<\/a>  (supra),   where   the <\/p>\n
     Division bench rejected the demand   claimants for enhancement for <\/p>\n
     the period of 6 months between the date of agreement  and  date of <\/p>\n
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\n                                 40<\/span><\/p>\n
     sale-deed. It is observed as under :–\n<\/p>\n
                “7. Coming to the other aspect, the claim raised on  <\/p>\n
                behalf of the respondents in the State appeals is
\n                that   they   would   be   entitled   to   enhanced
\n                compensation   because   of   the   intervening   period  <\/p>\n
                between 31st January, 1989 and 4th July, 1989
\n                i.e. the date of the agreement to sell and the date
\n                of registration of the sale deed. This argument is <\/p>\n
                based on the premise that the parties had agreed <\/p>\n
                to   sell   the   land   ad-measuring   13   ares   for
\n                Rs.15,000\/- as on the date of agreement to sell i.e.  <\/p>\n
                31st   January,   1989   and   the   sale   deed   was
\n                registered   on   4th   July,   1989,   being   Exhibit-74.
\n                Computed on the basis that the market value of  <\/p>\n
                the land as on January, 1989 is Rs.1,15,385\/- per  <\/p>\n
                hectare and the increasing trend in the price of the
\n                land   as   has   been   shown   by   the   claimants,   the
\n                value   of   Rs.1,15,385\/-   should   be   increased   to  <\/p>\n
                determine the market value of the property as on
\n                4-7-1989.   This   argument   on   behalf   of   the
\n                claimants   proceeds  on  a   fallacy   of   fact  and   law  <\/p>\n
                both. It is a settled rule of law that agreement to
\n                sell   does   not   pass   any   title   in   the   property.
\n                Agreement   to   sell   is   an   agreement   between   the
\n                parties   which   would   culminate   into   a   registered
\n                sale deed only after the obligations of each of the  <\/p>\n
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\n                                   41<\/span><\/p>\n
                 parties to the agreement is fulfilled by them. Mere <\/p>\n
                 fact   that   under   the   agreement   to   sell,   a  time  is  <\/p>\n
                 given for payment of sale consideration by itself is
\n                 no   evidence   on   the   fact   that   the   value   of   the
\n                 property will increase in the meanwhile. It is not  <\/p>\n
                 even necessary that every agreement to sell results
\n                 in execution  of  a registered  sale  deed.  In  simple
\n                 words, the agreement to sell  neither  creates any  <\/p>\n
                 title in the property nor is a document by which <\/p>\n
                 transfer   of   the   property   takes   place   between   a
\n                 willing seller and a willing buyer.”\n<\/p><\/blockquote>\n
                     The Division Bench also considers the judgment of Hon’ble <\/p>\n
     Apex Court in   AIR 2001 S.C. 2532 (State of Haryana v. Ram Singh), <\/p>\n
     where Hon’ble  Apex Court finds the High Court in error in rejecting <\/p>\n
     Exhibits R\/2 and R\/3 as inadmissible only on the ground that the <\/p>\n
     parties to the documents had not been examined by the State. Law <\/p>\n
     stated is that a certified copy of a registered agreement for sale is <\/p>\n
     not inadmissible in evidence unless the parties to the document are <\/p>\n
     examined to prove it. It is pointed out that this does not however <\/p>\n
     preclude   the   Court   from   rejecting   the   transaction   itself   as   being <\/p>\n
     malafide or sham provided such a challenge is laid before the Court.\n<\/p><\/blockquote>\n
     In   facts   of   said   case,   there   was   no   allegation   that   the   sales <\/p>\n
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\n                                    42<\/span><\/p>\n
     transactions relied upon did not represent genuine transactions. The <\/p>\n
     High Court was therefore in held error in refusing to consider the <\/p>\n
     transactions   evidenced   therein   merely   because   the   parties   to   the <\/p>\n
     documents were not examined. Therefore, the matter was remanded <\/p>\n
     to   the   High   Court   to   take   a   decision   on   the   market   value   of   the <\/p>\n
     acquired land taking into consideration Exhibits R\/2 and R\/3 unless <\/p>\n
     the claimants were permitted by the High Court to establish their <\/p>\n
     inadmissibility.\n<\/p>\n
     24..          In  AIR 1970 Guj. 91   (Collector, Baroda and another, v.\n<\/p>\n
     Haridas   Maganlal   Parikh   and   others),   the   Division     Bench   was <\/p>\n
     required to consider  whether an agreement of sale was a relevant <\/p>\n
     and good piece of evidence before the  Court  for the ascertainment <\/p>\n
     of the market value of the land comprised thereunder and later on <\/p>\n
     acquired  by   the   Government.  Having   noted   that   an   agreement   of <\/p>\n
     sale  did not in fact create interest in the property as contemplated <\/p>\n
     under Section 54 of the Transfer of Property Act, Gujrat High Court <\/p>\n
     held that on that account alone, it cannot be eliminated from being <\/p>\n
     considered as a relevant and good piece of evidence if established as <\/p>\n
     a   bonafide  transaction   between  a  willing   purchaser   and  a  willing <\/p>\n
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\n                                    43<\/span><\/p>\n
     vendor. It points out  decision of the Hon’ble  Supreme Court in AIR <\/p>\n
     1967   SC.   465–   (Raghubans   Narain   Singh   v.   Uttar   Pradesh   Govt.),<\/a> <\/p>\n
     where   even   an   offer   made   by   a   person   for   the   purchase   of   any <\/p>\n
     property and though not accepted, was treated to be a relevant piece <\/p>\n
     of evidence, and if that evidence is accepted as reliable, it can well <\/p>\n
     serve as a good piece of evidence for determining the market value <\/p>\n
     on   that   basis.   In   that   case,   the   claimant   led   the   evidence   of   one <\/p>\n
     Zaidi, a Deputy Collector, prior to his retirement had written two <\/p>\n
     letters to the claimant dated October 14, 1945 and November 20, <\/p>\n
     1945 expressing his desire to purchase the land in question. He had <\/p>\n
     offered Rs. 18,000\/-, but that offer was not accepted by the claimant <\/p>\n
     who wanted Rs. 24,000\/-  as price. This  part of the  evidence  was <\/p>\n
     accepted by the District Judge  and  on that basis he valued the land <\/p>\n
     at Rs. 18,000\/-. In appeal, the High Court at Allahabad took a view <\/p>\n
     that such evidence could not afford a true test about the value of the <\/p>\n
     property.   The claimant preferred an appeal to the Supreme Court <\/p>\n
     against that decision and there while dealing with that part of the <\/p>\n
     evidence about an offer made by witness Zaidi for the purchase of <\/p>\n
     that   property   sought   to   be   relied   upon,   the   Supreme   Court   has <\/p>\n
     observed that an offer does not come within the category of sales <\/p>\n
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\n                                  44<\/span><\/p>\n
     and purchases but nonetheless if a person who had made an offer <\/p>\n
     himself gives evidence such evidence is relevant in that it is evidence <\/p>\n
     that in his opinion that land was of a certain value. This part of the <\/p>\n
     evidence was accepted by the Supreme Court and it upheld the view <\/p>\n
     of the District Judge as against that of the High Court in that case.\n<\/p>\n
     Gujrat High Court then finds that :-\n<\/p>\n
               ”   It   also   appears   that   an   agreement   to   sell   in
\n               respect of any such property would be a relevant  <\/p>\n
               matter and can be used in relation to fixing the
\n               market value of the land. Such an agreement to
\n               sell stands on a stronger and better footing than <\/p>\n
               what a onesided offer can help in determining the  <\/p>\n
               price   of   the   land   under   acquisition.   The
\n               agreement   of   sale   is   a   bilateral   contract
\n               enforceable in law. The vendor agrees to sell the  <\/p>\n
               property and the purchaser agrees to purchase the
\n               same   as   per   the   conditions   set   out   in   the
\n               agreement.   There   is   an   agreement   of   price   in  <\/p>\n
               respect   of   the   property   comprised   thereunder.
\n               What remains to be done is to have a deed passed
\n               in respect of the said property as per the terms or
\n               conditions set out in that agreement. In our view,
\n               therefore, such an agreement of sale, apart from  <\/p>\n
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\n                                   45<\/span><\/p>\n
                the   same   being   perfectly   a   relevant   piece   of <\/p>\n
                evidence, can also be a basis for fixing the market  <\/p>\n
                value of the land under acquisition provided of
\n                course   it   is   found   to   be   a   bonafide   transaction
\n                between a willing or a prudent purchaser and a  <\/p>\n
                willing vendor.”\n<\/p><\/blockquote>\n
     25.                    The relevant sale deeds pressed into service to show <\/p>\n
     escalation are either within few days of agreements or then with gap <\/p>\n
     of about 6 months.   Pawan Agrawal (Exh. 187) has deposed about <\/p>\n
     two sales of plot no. 30 in SMS layout, first by SMS Trust to Smt.\n<\/p>\n
     Meera   Agrawal   registered   on   28\/5\/1982   as   per   agreement   dated <\/p>\n
     26\/11\/1981   and   later   by   Mrs.   Meera   to   Vijay   Agrawal   on <\/p>\n
     11\/1\/1984. These sale deeds  are at Exh. 102 and   188. It shows <\/p>\n
     annual escalation calculated between 26\/11\/1981 to 11\/1\/1984 at <\/p>\n
     23.72%. Here time interval between agreement and   actual sale by <\/p>\n
     SMS is of 6 months and   2 days.   Pramod Bathra (Exh. 192) has <\/p>\n
     spoken of purchase of plot no. 42 in SMS layout on 5\/12\/1981 as <\/p>\n
     per agreement dated 26\/11\/1981 and its sale by him on 23\/6\/1982 <\/p>\n
     registered on 17\/8\/1982 to Smt. Usha Malani. These sale-deeds are <\/p>\n
     at   Exhs.   114   and     193.   Appreciation   here   is   34.78%   between <\/p>\n
     26\/11\/1981 to 23\/6\/1982. Here time interval between agreement <\/p>\n
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\n                                  46<\/span><\/p>\n
     and   actual sale by SMS is of 9 days. At Exh. 189 is evidence of <\/p>\n
     Avinash Deshmukh and  he deposes about purchase and  sale of plot <\/p>\n
     no.   51.   It   is   purchased   from   SMS   Trust   as   per   agreement   dated <\/p>\n
     26\/11\/1981   on   17\/12\/1981   and   sold   on   19\/6\/1984   to   Govind <\/p>\n
     Rathod of which deed is  registered on 19\/6\/1984 itself i.e., after <\/p>\n
     Section   4 notification. Annual appreciation in this case is   31.21% <\/p>\n
     by   looking   to   period   from   26\/11\/1981   to   19\/6\/1984.   These   sale <\/p>\n
     deeds   are   at   Ex.   123   and     190.   Here   time   interval   between <\/p>\n
     agreement and   actual sale by SMS is of   21 days. Looking to this <\/p>\n
     time gap and   facts at hand, it is apparent that the answer to the <\/p>\n
     question   about   relevant   date   either   way   does   not   very   materially <\/p>\n
     affect the determination of escalation and   market price. Here, the <\/p>\n
     Joint Charity Commissioner has given sanctions under Section  36 of <\/p>\n
     Bombay   Public   Trust   Act   to   SMS   Trust   on   26\/11\/1981   and <\/p>\n
     17\/4\/1982.   As   held   in  Arunodaya   Prefab   vs.   M.D.   Kambli<\/a>  –   Misc.\n<\/p>\n
     Petition 415 and   485 of 1974  decided on 17\/11\/1978 by learned <\/p>\n
     Single Judge of this Court, Joint Charity Commissioner has to satisfy <\/p>\n
     himself about the adequacy of price offered and here these orders <\/p>\n
     are not in any way dispute. Even sales, whether by SMS Trust to <\/p>\n
     initial buyers or then by such purchasers from it to subsequently are <\/p>\n
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\n                                              47<\/span><\/p>\n
     not challenged as sham or bogus transactions. We therefore find that <\/p>\n
     reliance   on   the   agreement   date   to   compute   escalation   in   present <\/p>\n
     matter   and     therefore   acceptance   of   agreements   for   that   purpose <\/p>\n
     does  not   violate   any   legal   provisions.   In  State Of  Maharashtra vs.  <\/p>\n
     Punja Trambak Lahamage<\/a>  (supra)  (para 7), claimant – landowners <\/p>\n
     were   demanding   escalated   value   between   agreement   date     31 <\/p>\n
     January 1989 and  date of sale deed i.e., 4th July 1989. Thus, their <\/p>\n
     own  document of  agreement  was being  capitalized for  said  claim <\/p>\n
     and     observations   of   this   Court   need   to   be   understood   in   this <\/p>\n
     background.  This   judgment   nowhere   lays   down   that   even   a   third <\/p>\n
     party genuine agreement for sale – a bonafide transaction can not be <\/p>\n
     a relevant piece of evidence. Value to be given to it is obviously a <\/p>\n
     question dependent on facts of each case.\n<\/p>\n
     26.              Except Shri Gandhi other evidence on valuation of land is <\/p>\n
     of Owner Madhaolal , LAO Shri Deshmukh and  no other evidence is <\/p>\n
     placed before us.  Madhaolal has only said that valuation and  area <\/p>\n
     of acquired land is less. He chose to rely upon the report of expert.\n<\/p>\n
     In cross, he could not give the year of construction of two buildings <\/p>\n
     on acquired property. He stated that that there were no documents <\/p>\n
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\n                                    48<\/span><\/p>\n
     except one on record to support the area of acquired land as claimed <\/p>\n
     by   them.   He   accepted   that   distance   between   land   acquired   and <\/p>\n
     Amravati market was about 6 Kms. He had no knowledge whether <\/p>\n
     said land had non-agricultural potential. He was not aware whether <\/p>\n
     it formed last corner of town on north-east side. Thus he has not <\/p>\n
     placed   his   oath   either   to   give   market   value   of   land   or   then   of <\/p>\n
     structures. Evidence of Shri Gandhi can be looked into little later.\n<\/p>\n
     Sale   instances   of   SMS   layout   are   proved   by   examining   the <\/p>\n
     purchasers also. As there is no dispute about these instances, We are <\/p>\n
     not referring to that oral evidence here. Exh. 219 is the evidence of <\/p>\n
     then   Sub-divisional   Officer   and     LAO   Shri   N.K.   Deshmukh.   He <\/p>\n
     functioned   as   such   from   1986   to   1988.   He   got   structures   valued <\/p>\n
     through   PWD   while   land   through   Assistant   Director   of   Town <\/p>\n
     Planning   i.e.,   ADTP.   He   also   looked   into   sale   instances.   He   has <\/p>\n
     deposed that acquired land was on outskirts of Amravati and  its last <\/p>\n
     Nazul sheet. There was no development or any residential locality in <\/p>\n
     the   vicinity.   He   has   also   stated   that   in   1998   also   there   was   no <\/p>\n
     construction on shopping plots in SMS layout. He has then spoken of <\/p>\n
     preparation   of   hypothetical   layout,  comparison  with  plots   in   SMS <\/p>\n
     layout and recourse to belting method. He has stated that average <\/p>\n
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\n                                  49<\/span><\/p>\n
     rate of SMS layout was Rs. 90 per Sq. Mtr. and  he awarded Rs. 100 <\/p>\n
     for acquired land for first belt, Rs. 85 per Sq. Meter for 2nd belt and <\/p>\n
     Rs.  72\/- for  third  belt.  His  cross  reveals  his  reluctance to answer <\/p>\n
     inconvenient   questions.   He   also   accepted   that   letter   for   joint <\/p>\n
     measurement was issued on 18\/2\/1984 to office of DILR and  it was <\/p>\n
     started on very same day. He agreed that the owners who were at <\/p>\n
     Bombay therefore had no time to remain present. He further stated <\/p>\n
     that as sale instances used by him were within one year of Section  4 <\/p>\n
     notification, he did not give 10% annual hike. He did not accept that <\/p>\n
     purpose   of   deduction   on     account   of   deferment   factor   was   to <\/p>\n
     compensate  developer   whose  money remained  blocked.  He  stated <\/p>\n
     that plot no. 2 is slightly nearer to city than plot no. 1. He agreed <\/p>\n
     that plot no. 1 is at higher level than plot no. 2 but then did not <\/p>\n
     accept   that   it   was   superior.   Though   this   witness   has   been   cross <\/p>\n
     examined at length and because  of  his   attitude,  several  questions <\/p>\n
     were required to noted by Trial Court in question–answer form, We <\/p>\n
     are not going into details thereof. The contention of learned Senior <\/p>\n
     Advocate that this witness was biased need no consideration here as <\/p>\n
     witness was the land acquisition officer himself and   was trying to <\/p>\n
     justify ways and   means adopted by him. Those ways and   means <\/p>\n
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\n                                    50<\/span><\/p>\n
     were on record and as Trial Court needed to arrive at market value <\/p>\n
     independently, said attitude is not decisive either way. We only wish <\/p>\n
     to note that procedure followed by him to work out average rate of <\/p>\n
     land in SMS layout is unsustainable. He admits that he has followed <\/p>\n
     belting method but he considered the mean of rate of first row i.e., <\/p>\n
     shopping   plots   and     rate   of   last   row   of   residential   plots   in   SMS <\/p>\n
     layout to determine said average and  used it for hypothetical layout <\/p>\n
     in acquired land. Size and  number of first belt plots having access <\/p>\n
     directly   to   national   high-way,   location   of   last   belt   plots,   their <\/p>\n
     number   and   distance   from   national   high-way.   SMS   Layout   has <\/p>\n
     frontage of 579 feet on national high-way where it has laid total 35 <\/p>\n
     shop plots of 30 ft. X 15 ft. Behind this are the rows of plots for <\/p>\n
     residences. Depth of this layout is 1259 feet. There are total 6 cross <\/p>\n
     roads and  about 5 conservancy lanes till last row. The open space in <\/p>\n
     layout   is   at   other   end   of   this   layout.   Thus   due   to   inherent <\/p>\n
     differences, such average-method  used by LAO  can  not be of any <\/p>\n
     assistance here.\n<\/p>\n
     27.          Shri Gandhi in his evidence at Exh. 194. He is graduate in <\/p>\n
     civil   engineering   practicing   as     Architect,   Structural   Engineer   and <\/p>\n
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\n                                   51<\/span><\/p>\n
     Valuer as claimed for 35 years. He has stated that he is recognized <\/p>\n
     valuer   by   finance   ministry   of   Union   of   India.   He   has   confirmed <\/p>\n
     contents   of   report   dated     21   August   1995   and     it   came   to   be <\/p>\n
     exhibited as Exh. 195. He has considered area as 59870 Sq. Mtrs. as <\/p>\n
     disclosed   by   Court   Commissioner.   He   has   then   pointed   out   how <\/p>\n
     hypothetical   layout   of   ADTP   did   not   provide   for   maximum   land <\/p>\n
     utilization. He also explained charts with his report and procedure <\/p>\n
     for valuation undertaken by him. He pointed out comparable sales <\/p>\n
     and  how he added 25% hike annually and gave weightage of 10% <\/p>\n
     to  plots  in  acquired  lands.  Then  he   pointed  out   decrease   of  33% <\/p>\n
     from price of belt 1 plot for belt 2 and  50% for belt 3 plots. Rs. 25\/-\n<\/p>\n
     per Sq. foot is rate for first belt plots, Rs. 16.50  for plots in second <\/p>\n
     belt and  Rs. 12.50  per Sq. foot for plots in third belt.  These details <\/p>\n
     are in paras 12.00 to 14.00 of Exh. 195. In said paragraphs, he has <\/p>\n
     also attempted to justify his figures by using sale instances.   He, in <\/p>\n
     cross examination, has attempted to show how his layout is legal <\/p>\n
     and   absence of need to leave lanes for conservancy. He has also <\/p>\n
     stated   that   it   is   not   necessary   to   provide   for   common   sanitation <\/p>\n
     system. He also accepted his earlier reports dated 17\/1\/1985 at Exh.\n<\/p>\n
     204 and dated 27\/10\/1985 at Exh. 205.  This working is on the sale <\/p>\n
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\n                                    52<\/span><\/p>\n
     instances   and   as   already   noted   above,   it   is   futile   to   go   in   more <\/p>\n
     details of his evidence in this regard as sale instances in SMS layout <\/p>\n
     only  need  scrutiny  and   use  in  the  light  of  settled  legal  position.\n<\/p>\n
     Proximity in time and  area are the tests vital to reach valuation.\n<\/p>\n
     28.           Trial Court has granted annual hike of 10% after finding <\/p>\n
     out   rate   by   using   comparable   sale   instances   from   SMS   Layout.\n<\/p>\n
     Perusal of various binding precedents  in this connection show that <\/p>\n
     normally such hike is presumed to be 10%. Effort before this Court is <\/p>\n
     to justify said grant at 25% by Shri Gandhi and Annex. G with his <\/p>\n
     report   at   Exh.   195   is   heavily   banked   upon   by   Landowners.   Trial <\/p>\n
     Court has rejected oral evidence of Prabhakar Desmukh(Exh. 178), <\/p>\n
     Imrahimkhan   Dannekhan(Exh.   179),  Balkrishna   Dande  (Exh.181), <\/p>\n
     Vinod Padiya (Exh. 182) and   sale deeds at Exh. 171,171-A, 177, <\/p>\n
     177-A, 172,173,180 and  175 as the same are about plots located at <\/p>\n
     some distance. Four of these sales pertaining to two plots ie plot no.\n<\/p>\n
     81 and   16 located in sheet no. 19 figure in Annex. G. Undisputed <\/p>\n
     calculations   by   Shri   Gandhi   in   relation   to   these   two   plots   show <\/p>\n
     67.34% and  50.22% per year hike on these two plots. It is obvious <\/p>\n
     that  when  sale  instances  from  adjacent  SMS layout  are  available, <\/p>\n
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\n                                    53<\/span><\/p>\n
     reference to distant sales is really not warranted. Plan filed by Shri <\/p>\n
     Gandhi at Annex. F to show sale instances utilized by him also show <\/p>\n
     the distance. The other plots are located in already developed areas <\/p>\n
     in City and  hence rejection of those instances or then inclination of <\/p>\n
     Trial Court to rely upon sales in SMS layout can not be faulted with.\n<\/p>\n
     It is  not the case of Landowners that any other  similarly situated <\/p>\n
     area   at   outskirts   of   City   was   also   showing   similar   appreciation.\n<\/p>\n
     Pawan Agrawal (Exh. 187) has deposed about two sales of plot no.\n<\/p>\n
     30 area 3910 Sq. ft in SMS layout, first by SMS Trust to his wife <\/p>\n
     Smt. Meera Agrawal on 28\/5\/1982 and later by Mrs. Meera to Vijay <\/p>\n
     Agrawal on 11\/1\/1984. These sale deeds are at Exh. 102 and  188.\n<\/p>\n
     It shows annual escalation of 23.72%.   Pramod Bathra (Exh. 192) <\/p>\n
     has   spoken   of   purchase   of   plot   no.   42   area   4165   Sq.   ft.   in   SMS <\/p>\n
     layout on 5\/12\/1981 and its sale by him on 23\/6\/1982 to Smt. Usha <\/p>\n
     Malani. These sale-deeds are at Exhs. 114 and   193. Appreciation <\/p>\n
     here is 34.78%. At Exh. 189 is evidence of Avinash Deshmukh and <\/p>\n
     he deposes about purchase of plot 51 area 4569.5 Sq. ft.  and  sale <\/p>\n
     of its part 1779.5 Sq. ft by his mother. Plot no. 51 is purchased from <\/p>\n
     SMS Trust as per agreement dated 26\/11\/1981 on 17\/12\/1981 and <\/p>\n
     its part is sold on 19\/6\/1984 to Shri Rathod as per deed registered <\/p>\n
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\n                                   54<\/span><\/p>\n
     on   same   day.   Annual   appreciation   in   this   case   is   worked   out   at <\/p>\n
     31.21%.     These   3   instances   on   an   average   show   appreciation   of <\/p>\n
     about   29%   in   SMS   Layout.   Trial   Court   has   arrived   at   annual <\/p>\n
     appreciation   of   10%   due   to   binding  precedents.   However,   when <\/p>\n
     these three undisputed instances are available on record, it is clear <\/p>\n
     that there was  no scope for adhering to presumption of 10% annual <\/p>\n
     appreciation.  There  is  nothing   on   record  to  hold  that   these   three <\/p>\n
     instances  can  not be  accepted as  representative  of  market trends.\n<\/p>\n
     These instances are of residential plots either in second or third belt <\/p>\n
     in SMS Layout.  However, Landowners plot no. 1 is situated further <\/p>\n
     away from town and at a height as compared to land of SMS layout.\n<\/p>\n
     Evidence on record also shows that there is no shop or commercial <\/p>\n
     development in the area till 1996 at-least. This appreciation in SMS <\/p>\n
     Layout is not for shop plots and  hence half of it can be safely used <\/p>\n
     here. Hence, We are inclined to accept appreciation at 15% over and <\/p>\n
     above SMS rate instead of 25% as canvassed by Landowners. More <\/p>\n
     reasons for this course will appear little later in this judgment.\n<\/p>\n
     29.          Shri   Deo,   learned   counsel     has   contended   that   rate   of <\/p>\n
     shop-plots  in SMS layout can not be applied to residential plots in <\/p>\n
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\n                                   55<\/span><\/p>\n
     Landowners hypothetical layout. However, shop-plots in SMS Layout <\/p>\n
     are of 450 Sq. Ft. and buyers have purchased more that one such <\/p>\n
     plot at a time. These plots are also on mini by pass i.e., National <\/p>\n
     Highway. Till at least 1996, no shops had come up on any of these <\/p>\n
     shop-plots.   Moreover,   the   front   plots   in   hypothetical   layout   have <\/p>\n
     access either to same National High-way or other public road.  The <\/p>\n
     sale instances of second belt plots in SMS layout i.e., of plots not <\/p>\n
     touching National Highway but having opening on internal layout <\/p>\n
     roads are also available. Plot no. 12 ad-measuring 3200 Sq. ft. is sold <\/p>\n
     by SMS to Smt. Deshmukh on 20\/6\/1984 as per sanction given by <\/p>\n
     Joint Charity Commissioner on 26\/11\/1981 at Rs. 11.88 per sq. ft.\n<\/p>\n
     Plot nos. 17 to 20   ad-measuring 10785 Sq. ft. are sold by SMS to <\/p>\n
     M\/s   Pooja   Builders   on   28\/6\/1984   as   per   sanction   given   by   Joint <\/p>\n
     Charity Commissioner on 17\/4\/1982 at Rs. 12.05 per sq. ft. Plot nos.\n<\/p>\n
     21 to 23  ad-measuring 11615 Sq. ft. are sold by SMS to M\/s Swati <\/p>\n
     Corporation  on 22\/6\/1983 as per sanction given by Joint Charity <\/p>\n
     Commissioner on 17\/4\/1982 at Rs. 11.62 per sq. ft. Plot no.  29  ad-\n<\/p>\n
     measuring   4725   Sq.   ft.   is   sold   by   SMS   to   Shri   M.M.   Sikchi   and <\/p>\n
     Others     on   30\/6\/1984   as   per   sanction   given   by   Joint   Charity <\/p>\n
     Commissioner on 17\/4\/1982 at Rs. 11.64 per sq. ft. Plot no. 34  ad-\n<\/p>\n
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\n                                   56<\/span><\/p>\n
     measuring   3890.7   Sq.   ft.   is   sold   by   SMS   to   Smt.   K.D.   Vaidya   on <\/p>\n
     20\/8\/1984   at Rs. 10.79 per sq. ft. This plot is from third belt and <\/p>\n
     date of sanction given by Joint Charity Commissioner could not be <\/p>\n
     verified by us. But as sale is by public trust and there are only two <\/p>\n
     sanction orders as deposed by Anandprasad (Exh. 75), the date has <\/p>\n
     to be either 26\/11\/1981 or 17\/4\/1982. There are no instances on <\/p>\n
     record of further sales in which these plots are again resold to find <\/p>\n
     out appreciation. Hence, if We treat average plot rate to be Rs. 11.75 <\/p>\n
     per   sq.   ft.   in   November   1981   and     apply   rate   of   15%   annual <\/p>\n
     appreciation arrived at above for period of about 24 months, the rate <\/p>\n
     works out to Rs. 15.25 per Sq. ft. on 19\/2\/1984 for second belt plots <\/p>\n
     in SMS layout. In November, 1981, the average rate of shop plots or <\/p>\n
     belt 1 plots in SMS is found to be Rs. 14.80 per sq. ft. by Trial Court.\n<\/p>\n
     Thus then there was difference of about Rs. 3 per sq. ft. then. Rate of <\/p>\n
     shop plots then was about 25% more than belt 2  residential  plots.\n<\/p>\n
     If   this     proportion     is   maintained   and     Rs.   15.25   is     increased <\/p>\n
     similarly  to arrive  at  price  of  belt  1 plots  i.e.,  shop  plots  in   SMS <\/p>\n
     Layout, it comes to Rs. 19.00 per sq. ft. Whether this shop plot rate <\/p>\n
     in   SMS   Layout   can   be   adopted   for   first   belt   residential   plots   in <\/p>\n
     Landowners Layout is the issue. For their first belt plots LAO has <\/p>\n
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\n                                     57<\/span><\/p>\n
     granted rate of Rs. 9.29 per sq. ft., for belt II area at Rs. 7.90 per sq. <\/p>\n
     ft. and for 3rd belt area plots rate allowed is Rs. 6.69 per sq. ft. Thus <\/p>\n
     there   is   18%   rise   on   3rd  belt   to   derive   price   of   belt   2   plots   and <\/p>\n
     17.59% rise on 2nd  belt to reach price of first belt plots. We have <\/p>\n
     reached the rate of Rs. 15.25 per Sq. ft. on 19\/2\/1984 for second <\/p>\n
     belt   plots   in   SMS   layout.   If   this   is   proportionately   increased   by <\/p>\n
     17.59%, it becomes Rs. 17.93   per Sq. Ft. for first belt residential <\/p>\n
     plots   (hypothetical)   in   SMS   Layout   as   per   LAO.   However,   Shri <\/p>\n
     Gandhi has computed value of 2nd belt plots at 2\/3rd  of the first belt.\n<\/p>\n
     If We  increase the  rate  of Rs. 15.25  by 1\/3rd, We get rate  of  Rs.\n<\/p>\n
     20.00  per Sq. ft. for these first belt plots (residential) in SMS. Thus <\/p>\n
     in this hypothetical situation, rate of shop plots in SMS Layout on <\/p>\n
     19\/2\/1984 reached is Rs. 19.00  per Sq. Ft. ie. less than residential <\/p>\n
     rate.     Now   question   is   what   would   a   customer   prefer!   A   mixed <\/p>\n
     layout   like   SMS   or   then   purely   residential   one   like   hypothetical <\/p>\n
     layout here?   Exercise in next paragraph demonstrates   rate of Rs.\n<\/p>\n
     19.90   for first belt plots. It therefore brings forth the difference of <\/p>\n
     Rs.1.97   per   Sq.   ft.   on   LAO   determination.   We   are   looking   at   the <\/p>\n
     matter  almost  27 years after Section     4  notification.  The possible <\/p>\n
     error if rate of Rs. 19.90 is held correct, may be of 10%.  When the <\/p>\n
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\n                                    58<\/span><\/p>\n
     recourse has to be to guesstimate, it is apparent that market value <\/p>\n
     can not be determined with mathematical precision.   The evidence <\/p>\n
     on record shows that though SMS Trust laid out shop plots, no shop <\/p>\n
     activities had commenced till 1996 i.e., at-least   for 15  years after <\/p>\n
     said Layout was sanctioned.  Whether People purchased shop plots, <\/p>\n
     three     or four together, perhaps for use as residential plots only?\n<\/p>\n
     Trial Court has applied rate of Rs. 19.60 per Sq. ft. for first belt plots <\/p>\n
     in   Landowners   hypothetical   layout.   Learned   Senior   Advocate   has <\/p>\n
     fairly pointed out the calculation error committed by the Trial Court <\/p>\n
     in   the   process.   He   has   successfully   shown   that   if   said   mistake   is <\/p>\n
     corrected, these rates are required to be lowered to Rs.18.10 for first <\/p>\n
     belt,   Rs.   15.38   for   second   belt   and     13.08     per   Sq.Ft.   for <\/p>\n
     third\/remaining belt plots. Though Trial Court is in error as it failed <\/p>\n
     to note that time-gap was of 2 years and   85 days only, in view of <\/p>\n
     the discussion above, We are not in position to find its rates either <\/p>\n
     exorbitant or arbitrary.\n<\/p>\n
     30.          As SMS sale instances are to be applied with 15% annual <\/p>\n
     hike, We can also safely utilize average calculated at  Rs. 14.80 per <\/p>\n
     Sq. feet  by Trial Court in paragraph 29 of its judgment for first belt <\/p>\n
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\n                                    59<\/span><\/p>\n
     plots   for   our   consideration.   Section     4   notification   is   issued   on <\/p>\n
     19\/2\/1984 and   sale deeds of plot no. 1 to 17 in SMS layout are <\/p>\n
     registered on 5\/12\/1981. Agreements for all these shop plots are on <\/p>\n
     2\/11\/1981. Hence period from 2\/11\/1981 to 19\/2\/1984 of 2 years <\/p>\n
     3 months and  16 days is the period for which appreciation at 15% <\/p>\n
     annually needs to be worked out. It works out to 34.48% or 34.50%.\n<\/p>\n
     Thus   with   this   hike,   average   rate   as   on   19\/2\/1984   comes   to  Rs.\n<\/p>\n
     19.90. Trial Court has applied such rate erroneously calculated by it <\/p>\n
     @ Rs. 19.60   to first belt plots in Landowners layout. Shri Gandhi <\/p>\n
     after   this   stage   gave   weightage   of   10%   to   plots   in   first   belt   in <\/p>\n
     acquired land and   has arrived at his rate of second belt plots by <\/p>\n
     reducing this rate by 33% and of third belt plots by decreasing it by <\/p>\n
     50%.  Trial   Court  has   reduced   15%  from  its   rate  of   first  belt  and <\/p>\n
     further 15% for   third belt, to calculate rates of second and   third <\/p>\n
     belt respectively. We do not find any relevant material on record to <\/p>\n
     justify   this   additional   weightage   of   10%   or   its   demand   by <\/p>\n
     Landowners.   As   propriety   of   this   exercise   applying   15%   factor <\/p>\n
     undertaken by Trial Court is not seriously in dispute before us, if it is <\/p>\n
     adopted   and     accordingly   We   find   Rs.  16.90  and     Rs.13.90 <\/p>\n
     respectively     to   be   the   rates   of   second   and     third   belt   plots   in <\/p>\n
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\n                                   60<\/span><\/p>\n
     Landowners   hypothetical   layout.   Landowners   have   neither   argued <\/p>\n
     nor sought any specific increase in this rate.  In this situation, We <\/p>\n
     independently accept the rate as awarded at Rs. 19.60  for first belt <\/p>\n
     plots, Rs. 16.66 for second belt plots and Rs. 13.80 per sq. ft. for <\/p>\n
     third  belt plots  as  used  by the  Trial   Court.    The   consideration   of <\/p>\n
     material directly above obviates need to delve more into evidence of <\/p>\n
     Shri Deshmukh and   Shri Gandhi or into rival contentions in this <\/p>\n
     regard. Appeal of State to reduce it further does  not hold any water.\n<\/p>\n
     31.          Now   the   belting   exercise   needs   evaluation.   Trial   Court <\/p>\n
     has treated 95,060 Sq. Ft. abutting National Highway as First belt <\/p>\n
     plots. Those plots are plot nos. 1 to 14 and  15 to 17. Plots 18 to 32 <\/p>\n
     situated at other periphery of the hypothetical  layout (drawing of <\/p>\n
     Shri  Gandhi)  are  valued  as  second belt  plots.  Area  of  these  plots <\/p>\n
     97,020 Sq. ft. Other plots bounded on outer side by belt 1 or 2 plots <\/p>\n
     having   access   on   internal   layout   roads   are   third   belt   plots.   Their <\/p>\n
     total   area   is   2,88,440   Sq.   ft.   Thus   Trial   Court   has   considered <\/p>\n
     4,80,520 Sq. Ft. as plotable land available for actual sale out of total <\/p>\n
     area 6,44,440 Sq. ft. of plot no. 1. In his drawing Shri Gandhi has <\/p>\n
     considered plots 1 to 32 at periphery of layout on public roads as <\/p>\n
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\n                                    61<\/span><\/p>\n
     belt 1 plots. Plots behind belt 1 plots as belt 2 plots. 11 plots forming <\/p>\n
     boundary of SMS  Layout and near big bungalow, including plot of <\/p>\n
     big bungalow, are shown as third belt. Total area of plot 1 looked <\/p>\n
     into by him  is 6,44,440 Sq. ft. and plot area under three belts is <\/p>\n
     4,80,520 Sq. ft. Remaining land is for public utility. Land on which <\/p>\n
     structures are erected are also shown as plots in his layout. If total <\/p>\n
     land used by Trial Court and  Shri Gandhi is presumed to be correct, <\/p>\n
     it is apparent that reasons given by Trial Court for rejecting Layout <\/p>\n
     of     ADTP   can   not   be   faulted   with.   Layout   of   Shri   Gandhi   is   not <\/p>\n
     demonstrated to be contrary to any building bye-laws of Municipal <\/p>\n
     Council or development control rules. Being hypothetical, it was not <\/p>\n
     necessary for Landowners to get it sanctioned and State  ought to <\/p>\n
     have brought on record the irregularities or illegalities in it while <\/p>\n
     Shri Gandhi was subjected to cross examination. As the total area <\/p>\n
     considered   by   Landowners   and     Trial   Court   is   required   to   be <\/p>\n
     reduced,   State   has   sought   proportionate   reduction   from   all   three <\/p>\n
     belt-areas as arrived at by Trial Court.\n<\/p>\n
     32.          We   have   already   disagreed   with   the   finding   that   the <\/p>\n
     acquired   area   was\/is   59,870   Sq.   Mtrs.   or   6,44,440   Sq.   feet.   Not <\/p>\n
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\n                                    62<\/span><\/p>\n
     more than 54,168.86 Sq. Mtrs. of area could have been utilized by <\/p>\n
     Landowners or Trial Court to prepare a hypothetical layout. ADTP <\/p>\n
     has   contemplated   layout   on   land   as   acquired  i.e.,  on   54,168   Sq.\n<\/p>\n
     Mtrs.   Utilizing   the   equation   that   59,870   Sq.   Mtrs.   is   equal   to <\/p>\n
     6,44,440 Sq. feet,  about 5702 Sq. Mtrs. (67,836 Sq. Ft) additional <\/p>\n
     land   is   required   to   be   proportionately   deleted   from   3   belts.\n<\/p>\n
     Substance in challenge to area of each belt therefore needs to be <\/p>\n
     verified first. Mini by pass road is National highway and Chilamshah <\/p>\n
     Wali Road, though a public road, was not a tar road but a kuchha <\/p>\n
     road then. It therefore was at rear of the layout but with potential to <\/p>\n
     come on public road if there was plan to  construct a pucca tar road <\/p>\n
     in   its   place   in   near   future.   Kuchha   road     can   not   be   given   more <\/p>\n
     importance that an internal road in hypothetical layout. Because of <\/p>\n
     this possibility only, Trial Court has recognized it as second belt.  We <\/p>\n
     therefore can not yield to argument of learned Senior Advocate to <\/p>\n
     treat plots 18 to 32 shown in yellow colour and valued as 2 nd  belt <\/p>\n
     plots by Trial Court to be at-least of an intermediate belt between <\/p>\n
     category 1 and   2. We also can not accept the contention to value <\/p>\n
     plots   53   to   63   located   just   behind   plots   on   national   highway   as <\/p>\n
     second belt plots. Efforts made by him to show plot no. 63 at-least as <\/p>\n
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\n                                    63<\/span><\/p>\n
     in second belt can not be countenanced. We fail to see any logic in <\/p>\n
     recognizing plots situated at back of highway touch plots as second <\/p>\n
     belt plots as those plots have to use internal layout roads only and <\/p>\n
     are not situated differently than third belt plots demarcated in his <\/p>\n
     drawing by Shri Gandhi. Uniform treatment as third belt to all such <\/p>\n
     plots encircled by first and  second belt plots by Trial Court appears <\/p>\n
     more   reasonable.   We   therefore   proceed   to   reduce   proportionately <\/p>\n
     from each belt the area used in excess by Trial Court.\n<\/p>\n
     33.           Proportionate deductions have to aim to adjust  5702 Sq.\n<\/p>\n
     Mtrs. (67,836 Sq. Ft) of area. It forms about 10.49 th part  of 59,870 <\/p>\n
     Sq. Mtrs. or 9.49th portion of 6,44,440 Sq. feet. We therefore reduce <\/p>\n
     about 1o% area form entire chart of land utilization proportionately <\/p>\n
     from   lands   left   open   or   for   roads   and     each   belt.   After   such   an <\/p>\n
     exercise,   area   acquired   and     becoming   available   in     first   belt   is <\/p>\n
     95060-09506=85,554   Sq.   ft.,   in   second   belt   it   is   97020-\n<\/p>\n
     09702=87,318 Sq. ft. and  in third belt land available turns out to <\/p>\n
     be 288440-028844=2,59,596 Sq. ft. Rate per square foot arrived at <\/p>\n
     above for three belts is required to be applied to these three areas <\/p>\n
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\n                                  64<\/span><\/p>\n
     respectively. It thus leads to following :–\n<\/p>\n
       Belt.               Area                Rate.               Valuation.    \n\n\n\n\n                                                     \n     First Belt          85,554 Sq. ft.  X Rs. 19.60  =      1676858.40\n\n     Second belt      87,318 Sq. ft   X Rs. 16.66  =      1454717.88\n\n\n\n\n                                       \n     Third belt       2,59,596 Sq. ft. X Rs. 13.80  =      3582424.80     \n                     \n     Thus, total  market  value     of   entire  land  including  land on   which \n                    \n<\/pre>\n
     structures stand is Rs. 6714001.08  67,14,001\/-  i.e., Rs. Sixty-Seven <\/p>\n
     Lac Fourteen Thousand and One only. Thus there is no reason to <\/p>\n
     consider   separately   the   extent   of   land   required   to   support   the <\/p>\n
     structures by invoking relevant building bye-laws   or development <\/p>\n
     control rules and FSI\/FAR and add its value again to this land costs.\n<\/p>\n
     34.         Deductions   towards   developments   and     deferred   value <\/p>\n
     are to be carried out from this figure of Rs. 67,14,001\/-only. In Exh.\n<\/p>\n
     204, Shri Gandhi has given  details of development expenses worth <\/p>\n
     Rs. 10,93,000\/-. He has also taken deferred value at 6% for 3 years.\n<\/p>\n
     In Exh. 205 submitted after gap of about 9 months from Exh. 204, <\/p>\n
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\n                                       65<\/span><\/p>\n
     he has attempted to set off deferral value adjustment against annual <\/p>\n
     escalation. In Exh. 195, expenditure towards developer’s profit and <\/p>\n
     legal selling expenses is mentioned for the first time and  its figure <\/p>\n
     disclosed   is   11,02,000\/-only.   In   Exh.   204,   he   shows   following <\/p>\n
     expenses:–\n<\/p>\n
                       Work.                                                    Cost in Rs.\n\n\n\n\n                                            \n     -   Construction of 90,350 sq. ft. Roads\n          and  asphalting at Rs. 6.50 Per Sq. ft.\n                         ig                                                 5,87,275.00\n\n     -   Garden development 65,650 Sq. ft.\n         @ Rs. 2.50 Per Sq. Ft.                                       1,64,125.00\n                       \n     -   Storm Water drain, 1000 Rmtrs.\n         @ Rs. 200 per Rmtrs.                                        2,00,000.00\n      \n\n     -   Street lighting                                                      80,000.00    \n   \n\n\n\n     -   Architects charges @ 6%                                      61,884.00   \n\n\n<\/pre>\n
     Total   liability   thus   computed   by   him   in   it   was   Rs.   10,93,284\/-\n<\/p>\n
     rounded  up  to Rs.10,93,000\/-only. As  against this,  in  report Exh.\n<\/p>\n
     195 prepared in 1996 on the eve of entering the witness box, the <\/p>\n
     expenses disclosed in paragraph 18.50 are as under :–\n<\/p>\n
                            Work.                                              Cost in Rs.    \n\n     -   Construction of water bound macadam road \n         99,480 Sq. Ft. @ Rs. 1 per Sq. ft.                        99,480.00\n\n\n\n\n                                                             ::: Downloaded on - 09\/06\/2013 17:46:56 :::<\/span>\n                                     66<\/span>\n\n\n\n\n                                                                                 \n     -   Garden development.                                          32,000.00\n\n\n\n\n                                                         \n     -   40 mm water main 2500 Rft. @ Rs. 13 per\n         Running feet.                                                       32,500.00\n\n     -   Street light poles with cable, 36 in number\n\n\n\n\n                                                        \n         @ Rs. 2000\/-per no.                                            72,000.00\n\n     -   Storm water trenches job                                    05,000.00\n\n     -   Architects charges @ 6%                                     14,458.00.\n\n\n\n\n                                          \n                       \n<\/pre>\n
     Total of all these items comes to Rs. 2,55,438\/- and   it has been <\/p>\n
     rounded up to Rs. 2,55,000\/-in this  Exhibit.    Its  paragraph 19.00 <\/p>\n
     deals with developer’s profit and  legal selling expenses. It is worked <\/p>\n
     out at 12% of gross realization of estimated value of plots  i.e.,  of <\/p>\n
     Rs.91,78,480\/-. Said profit is shown   to be   Rs. 11,02,000\/-. Thus <\/p>\n
     from   Rs.   91,78,480\/-,   Rs.2,55,000\/-and     Rs.   11,02,000\/-   are <\/p>\n
     subtracted by Shri Gandhi to arrive at rounded up net  land value of <\/p>\n
     Rs. 78,21,000\/-.\n<\/p>\n
     35.           Explanation given by Shri Gandhi is in 1996 when he saw <\/p>\n
     adjacent layout and   developments  therein, he  applied very same <\/p>\n
     standards   to   his   hypothetical   layout.   However,   there   is   no <\/p>\n
     explanation as to why the developer’s profit worth Rs. 11,02,000\/-\n<\/p>\n
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\n                                   67<\/span><\/p>\n
     could  not   be   reflected  in   Exh.   204   or   205.   His   cross-examination <\/p>\n
     particularly in paragraph 16 shows that he was aware of absence of <\/p>\n
     municipal drain or sewerage main and  has asserted that individual <\/p>\n
     plot has to provide for it. In Exh. 195 there is no head of expenditure <\/p>\n
     on storm water drain while in Exh. 204 he has made provision of Rs.\n<\/p>\n
     2,00,000\/-   therefor.   He   has   denied   need   of   common   sanitation <\/p>\n
     system.   He   has   accepted   that   in   layout,   he   has     not   shown   any <\/p>\n
     service   lane   or   common   sanitation   plot.   We   therefore   find   this <\/p>\n
     material   sufficient   not   to   accept   his   working   of   development <\/p>\n
     expenditure.   Similarly,   when   law   requires   market   value   to   be <\/p>\n
     worked out on section 4 notification date, the layout is presumed to <\/p>\n
     be complete in all respects on said day and  price rise or escalation <\/p>\n
     thereafter is totally irrelevant in  hypothetical plotting  method. His <\/p>\n
     attempt to set of deferral value against future escalation is therefore <\/p>\n
     erroneous. Hence, his estimate of development expenditure can not <\/p>\n
     be   acted   upon.   Development   expenses   and     developer’s   profit <\/p>\n
     brought on record by State through its witness Shri Deshmukh (Exh.\n<\/p>\n
     219) is only Rs. 7,99,824\/-. In award State     through him (LAO) <\/p>\n
     only gave Rs. 3,71,504\/- for first belt plots at Rs. 9.29 per sq. ft., Rs.\n<\/p>\n
     10,25,678\/-   for   belt   II   area   at   Rs.   7.90   per   sq.   ft.   and   Rs.\n<\/p>\n
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\n                                     68<\/span><\/p>\n
     14,06,858\/-   for   3rd  belt   area   plots   at   Rs.   6.69   per   sq.   ft.       Total <\/p>\n
     compensation   worked   out   was   Rs.28,04,040\/-.   With   value   of <\/p>\n
     structures, trees and statutory benefits , award granted Landowners <\/p>\n
     total compensation of Rs. 34,67,030\/-. Out of total land value, about <\/p>\n
     25% was roughly taken   as development expenditure by LAO Shri <\/p>\n
     Deshmukh.   In   government   layout   plots   shown   are   94   while   Shri <\/p>\n
     Gandhi shows 63 plots. Government layout shows   road area to be <\/p>\n
     24% while in Shri Gandhi’s drawings it is 15%. It is not the case of <\/p>\n
     Landowners   that   other   layouts   in   the   vicinity   were   sanctioned <\/p>\n
     without   proposal   of   tar   road   or   sanitation   or   drainage.   But   then <\/p>\n
     when   number   of   plots   and     area   under   road   in   both   layout   are <\/p>\n
     compared, it does not lead to any certain solution.  Shri Deshmukh <\/p>\n
     has attempted to work out average rate of plot per Sq. ft. in SMS <\/p>\n
     Layout and there due to less frontage  on  national highway, area of <\/p>\n
     plots in belt 1 (shop plots) are less as compared to such frontage <\/p>\n
     available in Landowners hypothetical layout.   In this situation, We <\/p>\n
     find it safe to go by the case of Government and  calculations of Shri <\/p>\n
     Gandhi to compute development expenditure. When Rs.10,93,000\/-\n<\/p>\n
     envisaged as development expenditure in Exh. 204 is loaded   with <\/p>\n
     developer’s profit of Rs. 11,02,000\/- , it works out to Rs. 21,95,000\/-\n<\/p>\n
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\n                                  69<\/span><\/p>\n
     only. As layout area is reduced by about 10%, We also reduce this <\/p>\n
     figure by 10% and thus it totals to Rs. 19,75,550\/-. Thus developer <\/p>\n
     expenditure  worked out is  about 29%. This  is  only amount to be <\/p>\n
     spent  for  development  activities  from  consideration   received  from <\/p>\n
     hypothetical buyers and  land is already set apart for it. Hence, value <\/p>\n
     proportionately of such land is not included in it.  In paragraph 40 of <\/p>\n
     impugned   judgment,   the   Trial   Court   has   held   that   the   future <\/p>\n
     escalation balances the deferral value and   hence, has not found it <\/p>\n
     necessary   to   make   any   provision   for   it.   This   reasoning   is   found <\/p>\n
     wrong above by us. Shri Gandhi had made provision of 6% per year <\/p>\n
     for three years for said purpose in Exh. 204 in January 1985 before <\/p>\n
     withdrawing   it   in   October,   1985.   We   accept   the   same   proportion <\/p>\n
     here. Total land value worked out by us is   Rs. 67,14,001\/- only.\n<\/p>\n
     Subtracting   Rs.1975550\/-   from   it   leaves   sum   of   Rs.   4738451\/-\n<\/p>\n
     which   Landowners   get   in   lump-sum   as   compensation   which <\/p>\n
     otherwise would have been blocked for future at least 3 years. 6% of <\/p>\n
     Rs. 4738451\/- works out to Rs. 8,59,921\/-for three years. When half <\/p>\n
     of   this   figure  i.e.,  Rs.   426460\/-is   added   to   Rs.   1975550\/-,   total <\/p>\n
     comes   to   Rs.   2402010\/-.   Subtraction   of   this   total   form   Rs.\n<\/p>\n
     67,14,001\/-, leaves balance of   Rs. 43,11,991\/- which therefore is <\/p>\n
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\n                                    70<\/span><\/p>\n
     net land value.   Point No. C is answered accordingly.\n<\/p>\n
     36.           As to Point No. D :     Compensation of two residences i.e. <\/p>\n
     big   bungalow   and     second   bungalow   now   need   consideration.\n<\/p>\n
     Landowners have solely relied upon their expert.  How to approach <\/p>\n
     evidence of  said expert Shri Gandhi is also a  moot question. In AIR <\/p>\n
     1995   SC.   840   –  (Special   Land   Acquisition     Officer   v.   Sri   Siddappa <\/p>\n
     Omanna Tumari)<\/a> :-\n<\/p>\n
                 ” 7. When the Collector makes the reference to the
\n                 Court, he is enjoined by Section 19 to state the <\/p>\n
                 grounds on which he had determined the amount <\/p>\n
                 of compensation if the objection raised as to the
\n                 acceptance   of   award   of   the   Collector   under
\n                 Section   11   by   the   claimant   was   as   regards   the  <\/p>\n
                 amount   of   compensation   awarded   for   the   land
\n                 thereunder. The Collector has to state the grounds
\n                 on   which   he   had   determined   the   amount   of  <\/p>\n
                 compensation  where  the   objection  raised   by  the
\n                 claimant   in   his   application   for   reference   under
\n                 Section 18 was as to inadequacy of compensation
\n                 allowed   by   the   award   under   Section   11,   as
\n                 required  by  sub-section  (2)  of  Section  18 itself. <\/p><\/blockquote>\n
                 Therefore,   the   legislative   scheme  contained   in <\/p>\n
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\n                          71<\/span><\/p>\n
       Sections 12, 18 and 19 while on the one hand  <\/p>\n
       entitles   the   claimant   not   to   accept   the   award  <\/p>\n
       made   under   Section   11   as   to   the   amount   of
\n       compensation   determined   as   payable   for   his
\n       acquired land and seek a reference to the court for <\/p>\n
       determination   of   the   amount   of   compensation
\n       payable for his land,  on the other hand requires
\n       him to make good before the Court the objection <\/p>\n
       raised by him as regards the inadequacy of the  <\/p>\n
       amount   of   compensation   allowed   for   his   land
\n       under the award made under Section 11, with a  <\/p>\n
       view to enable the Court to determine the amount
\n       of   compensation   exceeding   the   amount   of
\n       compensation allowed by the award under Section <\/p>\n
       11,   be   it   by   reference   to   the   improbabilities <\/p>\n
       inherent   in   the   award   itself   or   on   the   evidence
\n        aliunde   adduced   by  him
\n                                    to   that   effect.   That   is
\n       why,   the   position   of   a   claimant   in   a   reference <\/p>\n
       before the Court, is considered to be that of the
\n       plaintiff in a suit requiring him to discharge the
\n       initial   burden   of   proving   that   the   amount   of  <\/p>\n
       compensation   determined   in   the   award   under
\n       Section 11 was inadequate, the same having not
\n       been determined on the basis of relevant material
\n       and   by   application   of   correct   principles   of
\n       valuation, either with reference to the contents of <\/p>\n
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\n                         72<\/span><\/p>\n
       the   award   itself   or   with   reference   to   other  <\/p>\n
       evidence   aliunde   adduced   before   the   Court.\n<\/p>\n
       Therefore,   if   the   initial   burden   of   proving   the
\n       amount of compensation allowed in the award of
\n       the Collector was inadequate, is not discharged,  <\/p>\n
       the   award   of   the  Collector   which  is  made  final
\n       and   conclusive   evidence   under   Section   12,   as
\n       regards   matters   contained   therein   will   stand  <\/p>\n
       unaffected.  But   if   the   claimant,   succeeds   in <\/p>\n
       proving   that   the   amount   determined   under   the
\n       award   of   the   Collector   was   inadequate,  the <\/p>\n
       burden   of   proving   the   correctness   of   the   award
\n       shifts   on   to   the   Collector   who   has   to   adduce
\n       sufficient evidence in that behalf to sustain such <\/p>\n
       award.  Hence,   the   Court   which   is   required   to  <\/p>\n
       decide the reference made to it under Section 18
\n       of   the   Act,   cannot   determine   the   amount   of
\n       compensation payable to the claimant for his land  <\/p>\n
       exceeding the amount determined in the award of
\n       the Collector made under Section 11 for the same
\n       land, unless it gets over the finality and conclusive  <\/p>\n
       evidentiary   value   attributed   to   it   under   Section
\n       12,   by   recording   a   finding   on   consideration   of
\n       relevant   material   therein   that   the   amount   of
\n        compensation  determined
\n                                   under   the   award   was
\n       inadequate for the reasons that weighed with it.\n<\/p>\n
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\n                           73<\/span><\/p>\n
       15.   It   has     become   a   matter   of   common  <\/p>\n
       occurrence with the claimants who seek enhanced <\/p>\n
       compensation for their acquired lands from court
\n       to produce the reports of valuation of their lands
\n       in court purported to have been prepared by the  <\/p>\n
       experts. No doubt, courts can act on such expert
\n       evidence in determining the market value of the
\n       acquired lands, but the  court  having  regard  to  <\/p>\n
       the   fact   that   experts   will     have     prepared     the  <\/p>\n
       valuation reports in the court and will depose in
\n       support of   such   reports,   at the instance of the  <\/p>\n
       claimants,  must with  care and caution examine
\n       such   reports   and   evidence   given   in   support
\n       thereof.  Whenever  valuation report made by an <\/p>\n
       expert   is produced in court, the opinion on the  <\/p>\n
       value of the acquired land given by such   expert
\n       can   be   of   no   assistance in determining   the
\n       market  value  of  such land, unless such opinion  <\/p>\n
       is formed on relevant factual  data  or  material,
\n       which     is     also   produced   before   the   court   and
\n       proved to be genuine  and  reliable, as  any  other  <\/p>\n
       evidence.  Besides,   if   the   method   of   valuation   of
\n       acquired land adopted by the expert in his report
\n       is   found   to   be   not   in   consonance   with   the
\n       recognized methods of valuation of similar lands,
\n       then also, the opinion   expressed   in   his   report <\/p>\n
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\n                          74<\/span><\/p>\n
       and his evidence can be of no real assistance to <\/p>\n
       the court in determining the market value of the <\/p>\n
       acquired   land.  Since   the   exercise     which     will
\n       have  been  done  by the  expert in arriving at the
\n       market value of the land in his report on the basis  <\/p>\n
       of factual data bearing on such valuation, will be
\n       similar to that to be undertaken by the court. In
\n       determining   the   market   value   of   the   acquired  <\/p>\n
       land, it can no doubt receive assistance from such  <\/p>\n
       report, if it is rightly done and the data on which
\n       the report is based is placed before the court and  <\/p>\n
       its authenticity is established.\n<\/p>\n
       16.   Therefore,   when  the  valuation   report   of   an
\n       acquired land is made by an expert on the basis of  <\/p>\n
       prices   fetched   or   to  be  fetched   by   sale  deeds  or <\/p>\n
       agreements  to  sell  relating to  the  very   acquired
\n       lands or the lands in the vicinity need arises for
\n       the court to examine and be satisfied about the  <\/p>\n
       authenticity of such documents and the truth of
\n       their   contents   and   the   normal   circumstances   in
\n       which they had come into existence and further <\/p>\n
       the correct method adopted in preparation of the
\n       report,   before   acting   on   such   report   for
\n       determining   the   market   value   of   the   acquired
\n       land. The opinion expressed in the report that the
\n       author of the report has made the valuation of the  <\/p>\n
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\n                                  75<\/span><\/p>\n
                acquired lands on the basis of his past experience  <\/p>\n
                of   valuation   of   such   lands   should   never   weigh  <\/p>\n
                with the court in the matter of determination of
\n                market   value   of   the   acquired   lands,   for   such
\n                assertions by themselves cannot be substituted for <\/p>\n
                evidence on which it ought to be based and the
\n                method or valuation adaptable in such report.\n<\/p>\n
                17.  Therefore, when a report of an expert is got  <\/p>\n
                 produced   by   a   claimant  before  the
\n                                                           court   giving  <\/p>\n
                market   value   of   the   acquired   lands,   the   court
\n                may,   choose   to   act   upon   such   report   for  <\/p>\n
                determination   of   the   amount   of   compensation
\n                payable for the acquired lands, if the data or the
\n                material   on   the   basis   of   which   such   report   is <\/p>\n
                based   is   produced   before   the   Court   and   the  <\/p>\n
                authenticity   of   the   same  is  made  good   and   the
\n                method of valuation adopted therein is correct.”\n<\/p>\n
     37.         In    Prabhakar   Raghunath   Patil   v.   State   of   Maharashtra,<\/a><\/p>\n
     (2010)   13   SCC   107,   Hon’ble     Apex   Court   has   appreciated   the <\/p>\n
     evidence   of   expert   on   structures.    Reliance   was   placed   by   the <\/p>\n
     appellants   on   the  evidence  of  the  expert  witness   and  also on  the <\/p>\n
     circular dated 3-1-1991 issued by the Chief Engineer, Amravati in <\/p>\n
     respect of cost of construction in justification of their prayer for the <\/p>\n
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\n                                  76<\/span><\/p>\n
     increase of the valuation of the structure. Under that circular   the <\/p>\n
     cost of residential building was fixed  for Ground floor at Rs. 2800 <\/p>\n
     per square metre, for First floor at Rs. 2200 per square metre and for <\/p>\n
     Second floor at Rs. 2200 per square metre.  Insofar as the opinion of <\/p>\n
     the expert is concerned, he had not given any specific evidence as to <\/p>\n
     what   was   the   age   of   the   structure   when   it   was   notified   for <\/p>\n
     acquisition.   Hon’ble     Court   held   that   without   making     enquiry <\/p>\n
     regarding the age of the structure, it would be difficult to assess its <\/p>\n
     valuation and, therefore, the expert was not justified in not making <\/p>\n
     an   assessment   with   regard   to   the   age   of   the   structure.   He   was <\/p>\n
     faulted   on   the   basic   principle   of   assessment   of   valuation   of   a <\/p>\n
     construction. Hon’ble  Court also noted that the cost of construction <\/p>\n
     of the ground floor is always on the higher side while the cost of <\/p>\n
     construction of first floor and second floor is on the lower side. The <\/p>\n
     expert examined had also ignored the said fact going to the root of <\/p>\n
     the valuation and for that also the evidence of the expert was held <\/p>\n
     not reliable. The only evidence that, therefore, was available before <\/p>\n
     Apex Court was the circular issued by the Chief Engineer, Amravati <\/p>\n
     dated 3-1-1991 regarding district schedule rates in respect of cost of <\/p>\n
     construction   with   reference   to   the   Building   and   Construction <\/p>\n
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\n                                   77<\/span><\/p>\n
     Department of the State of Maharashtra. This High Court, had held <\/p>\n
     that the aforesaid evidence   for the year 1991 in District Amravati <\/p>\n
     could not be a safe guide for the determination of the compensation <\/p>\n
     of   the   structure   acquired   in   the   year   1983.   Hon’ble     Apex   Court <\/p>\n
     noted that the practice of issuing such circular by the Chief Engineer <\/p>\n
     was   for   the   first   time   introduced   in   the   year   1991   and   no   such <\/p>\n
     practice was in existence in the year 1983. But since there was at <\/p>\n
     least   some   evidence   indicating   the   district   schedule   rates   for   the <\/p>\n
     standing structure in the year 1991, Hon’ble   Court undertook   the <\/p>\n
     exercise of  relating it back to the year 1983  after pointing out how <\/p>\n
     and   why it must be undertaken with great care and caution.   The <\/p>\n
     High   Court,   while   referring   to   the   oral   evidence   adduced   by   the <\/p>\n
     expert, had stated found the fine condition of the structures and the <\/p>\n
     superior   quality   of   materials   used   for   construction   of   the   same <\/p>\n
     beyond doubt. Hence, despite the ambiguity surrounding the age of <\/p>\n
     the structures, as the condition and quality of the building was never <\/p>\n
     called   into   question.   Therefore,   Hon’ble     Apex   Court     raised   the <\/p>\n
     compensation awarded. It also observed that the margin of error in <\/p>\n
     comparing schedule rates for construction of buildings in the same <\/p>\n
     district   would   be   lesser   than   in   attempting   to   use   future   sale <\/p>\n
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\n                                   78<\/span><\/p>\n
     transactions   as   exemplars.   Hon’ble     Apex   Court   considered   a <\/p>\n
     deduction of 60% (approximate) from the said valuation of the cost <\/p>\n
     of construction in 1991   appropriate, and accordingly arrived at a <\/p>\n
     compensation   of   1700   per   square   metre   for   the   structure.   This <\/p>\n
     percentage of deduction at 60% is based on the building cost index <\/p>\n
     between   1983   and   1991   published   by   the   Central   Public   Works <\/p>\n
     Department. Thus Hon’ble  Apex Court did not accept the report of <\/p>\n
     expert but relied upon other evidence\/material brought on record by <\/p>\n
     parties to determine the compensation for structure.\n<\/p>\n
     38.                   It is obvious that data of type and  nature looked into <\/p>\n
     by Shri Gandhi while determining the market price of plot no. 1 or <\/p>\n
     then   charts   prepared   by   him   to   substantiate   that   exercise   is   not <\/p>\n
     available when one comes to his report on valuation of structures.\n<\/p>\n
     There he blindly accepts 1930 – the year of purchase of properties by <\/p>\n
     his client i.e., Landowners,  as year of construction and  decides the <\/p>\n
     age   to   be   54   as   on   19\/2\/1984.   He   then   points   out   approximate <\/p>\n
     future life of the structures and treating total life thereof to be 85 <\/p>\n
     years,   he   applies   depreciation.   He   claims   that   he   has   used   full <\/p>\n
     replacement   costs   method   to   arrive   at   1984   value   of   structures.\n<\/p>\n
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\n                                      79<\/span><\/p>\n
     Here, we may point out that in  P
\n                                       rabhakar Raghunath Patil v. State of<\/p>\n
     Maharashtra,<\/a>   (supra)    Hon’ble     Apex   Court   has   made   following <\/p>\n
     observations     on   principles   relevant   for   deciding   the     full <\/p>\n
     replacement cost of structures:–\n<\/p>\n
               “13.  In  Administrator  General  of  W.B.  v. Collector-
\n               (1988) 2 SCC 150=AIR 1988 Sc 943, this Court held <\/p>\n
               that:\n<\/p><\/blockquote>\n
               “17. … building value is estimated on the basis of the
\n               prime cost or replacement cost less depreciation. The  <\/p>\n
               rate   of   depreciation   is,   generally,   arrived   at   by
\n               dividing the cost of construction (less the salvage value
\n               at the end of the period of utility) by the number of  <\/p>\n
               years   of   utility   of   the   building.   The   factors   that
\n               prolong the life and utility of the building, such as  <\/p>\n
               good   maintenance,   necessarily   influence   and   bring
\n               down the rate of depreciation.”\n<\/p><\/blockquote>\n
     39.              Admittedly,   following   buildings   stand   on   the   acquired <\/p>\n
     land – One big bungalow; One small bungalow, One   barrack type <\/p>\n
     building, Two toilet blocks and Mali Shed.  Award under Section 11, <\/p>\n
     grants land owners sum of Rs. 3,78,000\/- towards these structures, <\/p>\n
     and before Reference Court they had claimed compensation of Rs.\n<\/p>\n
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\n                                   80<\/span><\/p>\n
     18,22,000\/-.     They   thus,   claimed   Rs.   14,44,000\/-   more   towards <\/p>\n
     these structures.  Before us, learned Senior Counsel has restricted his <\/p>\n
     arguments to only two structures namely – Big bungalow and small <\/p>\n
     bungalow. Evidence available on record is of Government Valuer –\n<\/p>\n
     Shri Manoharrao Gulabrao Kale at Exh.217 and his valuation report <\/p>\n
     is   at   Exh.218.       Land   owners   have   relied   upon   evidence   of   Shri <\/p>\n
     Gandhi and his report at Exh.195.\n<\/p>\n
     40.          The   Reference   Court\/Trial   Court   has   found   that   Shri <\/p>\n
     Kale, fixed the rate of construction of ground floor of big bungalow <\/p>\n
     at Rs.1150\/-  per square  meter  and of  first floor  at Rs.1050\/-  per <\/p>\n
     square   meter.     For   small   bungalow,   he   determined   the   rate   at <\/p>\n
     Rs.900\/- per square meter.  The valuation was claimed to be made <\/p>\n
     on the basis of CSR rates of 1984.   It is not in dispute that these <\/p>\n
     rates are not placed on record, or even figure anywhere in his report <\/p>\n
     Exh.218.     His cross examination reveals that as measurements of <\/p>\n
     existing  structures were available with him, he was given time  to <\/p>\n
     point out how on the basis of CSR rates a particular valuation was <\/p>\n
     arrived at by him.  He got two adjournments also to substantiate his <\/p>\n
     calculations.  On one occasion CSR Rates were shown to him and he <\/p>\n
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\n                                   81<\/span><\/p>\n
     was called upon to justify his calculations, but he failed to produce <\/p>\n
     anything   on   record   to   show   correctness   of   his   calculations   by <\/p>\n
     applying CSR Rates.  Trial Court therefore, has refused to believe his <\/p>\n
     report at Exh.218.   The Trial Court has also noted the fact that he <\/p>\n
     did not consider the Porch and Balcony for construction valuation <\/p>\n
     and no reason was assigned for excluding the same. Then it found <\/p>\n
     that   he   had   deducted   sum   of   Rs.   1,50,000\/-   from   valuation   of <\/p>\n
     structure i.e. of Big bungalow on account of renovation expenses.\n<\/p>\n
     No document could be produced to show that such expenses were <\/p>\n
     actually incurred.  Taking over all view of the matter, it did not rely <\/p>\n
     upon the evidence of Shri Kale.  For same reasons it also refused to <\/p>\n
     accept evidence of the Land Acquisition Officer Shri Deshmukh.\n<\/p>\n
     41.                           In paragraph no.49 of its judgment, the Trial <\/p>\n
     Court has referred to the evidence of Shri Gandhi.  It found that he <\/p>\n
     has looked into the construction of Porch and Balconies and arrived <\/p>\n
     at   construction   cost   by   using   data   collected   by   him,   his   personal <\/p>\n
     experience   and   CSR   Rates   for   cross   checking.     It   has   given <\/p>\n
     importance   to   admission   by   Shri   Manohar   Kale   in   his   cross <\/p>\n
     examination that Shri Gandhi has  correctly applied the depreciation <\/p>\n
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\n                                  82<\/span><\/p>\n
     method. It further looked into the cross examination and found that <\/p>\n
     assertions  of Shri Gandhi  were not shaken and hence, in  view of <\/p>\n
     these 5-6 lines, it proceeded to accept his evidence and relied upon <\/p>\n
     his   figure   of   Rs.   17,57,721\/-   as   value   of   big   bungalow,   small <\/p>\n
     bungalow, out houses, Porch, Balconies, Mali Shed and lavatory box.\n<\/p>\n
     It deducted  an amount of Rs. 3,78,000\/-  already awarded by the <\/p>\n
     Land Acquisition Officer and fixed the compensation payable in this <\/p>\n
     respect at Rs. 13,79,721\/-.   It also found that there was one Well, <\/p>\n
     but   then   it   was   without   water   and   hence   of   no   use,   but   a <\/p>\n
     disadvantage.     It   therefore,   did   not   allow   land   owners   anything <\/p>\n
     towards value of that Well.\n<\/p>\n
     42.                      The Trial Court itself has relied upon the judgment <\/p>\n
     reported at 1997 (2) Land Acquisition  Laws 537 (Indian Rarearth <\/p>\n
     Ltd.  .vrs.  Elsave Fernandis).  It noted that as per said judgment, it <\/p>\n
     was   incumbent   upon   the   valuation   officer   to   show   details   of <\/p>\n
     valuation in his report.  If his report is supported by proper data, it <\/p>\n
     would   help   the   Court   in   finding   out   whether   building   and   other <\/p>\n
     structures were properly valued or not, and to show that valuation <\/p>\n
     exercise was impartial and not arbitrary.   It found that neither the <\/p>\n
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\n                                  83<\/span><\/p>\n
     Land Acquisition Officer Shri Deshmukh nor Shri Kale, had produced <\/p>\n
     relevant material.   However, one fails to understand why the Trial <\/p>\n
     Court  could  not  apply  very  same  standard   while   appreciating   the <\/p>\n
     evidence of Shri Gandhi.\n<\/p>\n
     43.                  This brings us to consideration of evidence of Shri <\/p>\n
     Gandhi on these two buildings i.e., big building and small building.\n<\/p>\n
     In   his   examination-in-chief   he   has   given   his   qualifications   and <\/p>\n
     thereafter has stated that he was practicing as Architect, Structural <\/p>\n
     Engineer and Valuer for about 35 years  and as on date on which his <\/p>\n
     deposition was recorded, i.e. on 07.12.1996.  He has stated that he <\/p>\n
     was fellow of Institution of Valuers and a registered valuer with the <\/p>\n
     Ministry of Finance, Government of India.   He was panel valuer of <\/p>\n
     Life Insurance Company and of Bombay High Court for immovable <\/p>\n
     properties, and had  worked as an Editor of a Technical Journal by <\/p>\n
     name “Indian Valuer” for a duration of 6 years.     He claimed that <\/p>\n
     during   practice   he   planned,   designed   and   supervised   number   of <\/p>\n
     residential and industrial buildings and fixed valuation of properties <\/p>\n
     in   rent   fixation   matters   and   also   for   taxation   and   loan   advance <\/p>\n
     purposes and land acquisition purposes.  He also stated that he had <\/p>\n
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\n                                   84<\/span><\/p>\n
     appeared in the Court as an expert.   He confirmed statement made <\/p>\n
     by   him   in   his   report,   and   that   report   came   to   be   exhibited   as <\/p>\n
     Exh.195.     His   cross-examination   reveals   in   paragraph   22   that   he <\/p>\n
     inspected two buildings on 21.03.1984 and he had no knowledge <\/p>\n
     whether main building was then repaired already by government.\n<\/p>\n
     Thereafter, he visited the buildings on 11.07.1984 and 27.12.1988.\n<\/p>\n
     He accepted that the building was very old having old structure and <\/p>\n
     he could not trace any document about the date of construction.   He <\/p>\n
     accepted that he did not mention CSR rates in his report and his <\/p>\n
     report was based upon his personal experience and data collected by <\/p>\n
     him.   He further volunteered that he used CSR to cross check and, <\/p>\n
     therefore, CSR is not mentioned in his report.     He adopted lump-\n<\/p>\n
     sum per square feet prices as per his experience for valuation.   He <\/p>\n
     accepted various method, but stated that those methods were not for <\/p>\n
     arriving at valuation of building, but for valuation of property which <\/p>\n
     included land and building both.   He further stated that he adopted <\/p>\n
     rates on the basis of his own experience and he has mentioned those <\/p>\n
     rates applicable to built up floor area basis.  He included porch and <\/p>\n
     galleries  also in built up area.  He accepted that porch of building <\/p>\n
     has no plinth and he calculated total area of porch as built up area.\n<\/p>\n
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\n                                   85<\/span><\/p>\n
     He   has   given   same   average   rate   for   porch   as   also   for   projecting <\/p>\n
     balconies.   He accepted that cost of first floor of any building is less <\/p>\n
     then ground floor.  He denied that porch and balconies needed to be <\/p>\n
     excluded   from   cost   estimation   and     he   also   denied   that   cost   of <\/p>\n
     projecting   structure   was   also   included   and   built   up   area.     He <\/p>\n
     accepted that because of thicker walls, carpet area is reduced.   He <\/p>\n
     accepted that he gave weightage of 35% in respect of big building.\n<\/p>\n
     He   further   stated   that   he   had   not   prepared   detailed   estimate   of <\/p>\n
     acquired building and he considered depreciation of about 22% for <\/p>\n
     all the buildings.   He denied that rate of depreciation is about 1% <\/p>\n
     per year of the building cost and he stated that he applied “sinking <\/p>\n
     fund   of   depreciation   method”.     He   took   1930   as   base   year   for <\/p>\n
     construction.   He explained the term “sinking fund” to mean that <\/p>\n
     funds required to be set aside every year to recoup  capital invested <\/p>\n
     in the building.  No document was supplied to him by land owners <\/p>\n
     for   arriving   at   annual   fund   and   according   to   him   it   was   not <\/p>\n
     necessary.     The   sinking   fund   method   and   calculation   was   based <\/p>\n
     upon assumption. He further stated that other methods i.e. Straight <\/p>\n
     Line Method, Constant Percentage Basis and Qualify Survey Method <\/p>\n
     were not scientific.   He further stated that he had not verified the <\/p>\n
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\n                                   86<\/span><\/p>\n
     Government   Method   of   valuation,   and   therefore,   could   not   say <\/p>\n
     whether the rate given by him was higher than the government rate.\n<\/p>\n
     He   claimed   that   he   determined   the   valuation   on   the   basis   of   his <\/p>\n
     experience   and   on   the   basis   of   the   market   rate   prevailing   in <\/p>\n
     Amravati City.\n<\/p>\n
     44.                             His (Gandhi’s) report at Exh.195, in it’s paragraph <\/p>\n
     no.5.00   shows   type   of   construction   of   Bungalow   No.1   as   also <\/p>\n
     Bungalow   No.2.     He   has   given   general   description   like,   old <\/p>\n
     conventional bungalow built in Palatial style with number of large <\/p>\n
     sized   rooms   at     each   floor,   high   ceiling,   large   size   doors   and <\/p>\n
     windows of Burmah teak, which was than available freely, but very <\/p>\n
     rate at the time of preparation of report.  He has pointed out that the <\/p>\n
     structure was load bearing and external walls were 21 inches thick.\n<\/p>\n
     He has  also given  the  length and breadth  of  brick pillars, he  has <\/p>\n
     pointed out teak wood paneled windows with iron fittings and oil <\/p>\n
     paint, guard bars, different type of   teak wood doors.   Some doors <\/p>\n
     were   paneled     and   some   were   partly   glazed   and   partly   paneled.\n<\/p>\n
     Upper floor doors and windows have curved glazed ornamental fan <\/p>\n
     lights   and   have   brass   fittings.     No   specific   number   of   doors   or <\/p>\n
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\n                                   87<\/span><\/p>\n
     windows   is   disclosed   by   him.   All   wooden   work   is   stated   to   be <\/p>\n
     painted.   Floor is stated to be of Shahabad Ladi on both the floors.\n<\/p>\n
     Steel joists with ladi and brick coba on first floor and terrace of first <\/p>\n
     floor is finished with patent stone paving of water proof coba.  Use <\/p>\n
     of   ornamental   concrete   balusters     provided   with   top   decorative <\/p>\n
     coping   for   a   terraces   to   add   to   architectural   beauty   ,   is   also <\/p>\n
     mentioned.  A concrete  staircase  with    teak wood railing  and first <\/p>\n
     floor   roof   of   Manglori   tiled   with   teak   wood   trusses,   teak   wood <\/p>\n
     perlins and teak wood boarding, is also mentioned.   Best timber is <\/p>\n
     used for roof work.   It is mentioned that the bungalow is in good <\/p>\n
     condition,   due to use of quality material and good workmanship.\n<\/p>\n
     There was no indication  of white ants and timber was not decayed.\n<\/p>\n
     Temporary   sheds   open   on   sides   were   provided   at   ground   level <\/p>\n
     touching walls of main building and it was having wooden bulley <\/p>\n
     posts and   asbestos corrugated sheets roof with natural ground, as <\/p>\n
     its floor.  A balcony covered at top with C.I. Jali and teak wood hand <\/p>\n
     rail, is also mentioned.   Electrical wiring is stated to be open type <\/p>\n
     with wiring on teak wood battens.  A toilet block with pipe fittings, <\/p>\n
     waste line is  connected to septic tank, is also noted.  The report also <\/p>\n
     mentions provision of standard plumbing and water supply fittings.\n<\/p>\n
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\n                                    88<\/span><\/p>\n
     45.           About   bungalow   no.2,   report   of   Shri   Gandhi   discloses <\/p>\n
     that it is a load bearing structure with 9 inches plinth and about 17 <\/p>\n
     feet   height.     It’s   side   verandah   has   front   height   of   10   feet   above <\/p>\n
     plinth,  8 feet wide paved and a uncovered platform is also provided <\/p>\n
     around the main building at plinth level.   It has brick walls which <\/p>\n
     are about 15 inches thick and teak wood paneled or partly glazed <\/p>\n
     and partly paneled doors are fixed.  Windows have teak wood with <\/p>\n
     ornamental curve fan light and fly proof jali.   Burmah teak is used <\/p>\n
     for wood work.  It’s roof is of manglore tiles with teak wood perlins <\/p>\n
     and teak wood boarding.  Verandah has manglore tile roof with balli <\/p>\n
     rafter.   Entrance   porch   has   manglore   tile   roof   with     teak   wood <\/p>\n
     trusses. Flooring is of plain cement tiles and some rooms have patent <\/p>\n
     stone floor.  Cooking platform is provided in kitchen.  W.C. and bath <\/p>\n
     are   connected   to   waste   lines   and   to   septic   tanks   and   soak   pit.\n<\/p>\n
     Standard electrical wiring work is also done.\n<\/p>\n
     46.            This discussion  shows that except for giving the details of <\/p>\n
     structure,   the   report   does   not     give   other   necessary   background <\/p>\n
     which   might   have   looked   into   by   said   expert   witness.     He   has <\/p>\n
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\n                                   89<\/span><\/p>\n
     undertaken the exercise of valuation in paragraph no.20 and there <\/p>\n
     he has  given calculations  of area  of  bungalow no.1.   The  ground <\/p>\n
     floor is stated to 5582 sq. ft. with porch and first floor is stated to be <\/p>\n
     3374 sq. ft with Balcony.  Total floor area is given as 8956 sq. ft.  He <\/p>\n
     has   then   in   next   paragraph   given   rates   felt   by   him   as   fair   and <\/p>\n
     reasonable cost of construction of a new (full replacement cost) such <\/p>\n
     structure for  Bungalow no.1.  He has applied rate of Rs. 165\/- per <\/p>\n
     sq. ft. for bungalow no.  1 and for Bungalow no.2 he has disclosed <\/p>\n
     rate   of   Rs.150\/-   per   sq.   ft.     In   paragraph     thereafter,   he   has <\/p>\n
     mentioned that the structures were built some time in the year 1930 <\/p>\n
     and hence at the time of acquisition their age was 54 years.  He has <\/p>\n
     mentioned that all structures were in sound condition and actually <\/p>\n
     in use and would last for a tenure of 30-40 years.  Total life of the <\/p>\n
     structure is, therefore, taken to be 85 years by him.     He has then <\/p>\n
     mentioned   sinking   fund   method   for   depreciation   and   then <\/p>\n
     proceeded to undertake  mathematical calculations.  He has arrived <\/p>\n
     at   depreciated   value   or   present   value   of   bungalow   no.1   at <\/p>\n
     Rs.11,60,064\/- and of Bungalow no.2 at Rs. 3,41,722\/-.\n<\/p>\n
     47.          His   exercise   shows   that   he   has   applied   same   rate   for <\/p>\n
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\n                                   90<\/span><\/p>\n
     ground floor and first floor of big bungalow.   He has applied that <\/p>\n
     rate even for structures which had no plinth, though in his evidence <\/p>\n
     he has mentioned that he has cross-checked it by using CSR, there is <\/p>\n
     no such mention anywhere in the said report at Exh.195.   He has <\/p>\n
     also mentioned that he has looked into the market rates prevailing <\/p>\n
     in  Amravati  City,  but that  statement  also no  where  figures in  his <\/p>\n
     report at Exh.195.  The report itself is prepared on 21.08.1995 and <\/p>\n
     recording   of   his   evidence   has   commenced   on   07.12.1996.     In <\/p>\n
     absence   of   either   CSR   rates   or   then   rates   verified   from   Amravati <\/p>\n
     market on record, it is difficult to appreciate the rates worked out <\/p>\n
     and     applied   by   him.       As   already   noted   above,   in   paragraph <\/p>\n
     no.20.20 of his report, he suddenly mentions the rate per square feet <\/p>\n
     applied by him, without disclosing any basis therefor.   Even if his <\/p>\n
     experience is to be looked into, he has not pointed out it’s use while <\/p>\n
     preparing   report   at   Exh.195.     The   report   has   obviously   been <\/p>\n
     obtained   by   the   landowners   for   using   in   Court   matters   and   Shri <\/p>\n
     Gandhi was aware of its purpose.  It cannot be forgotten that he had <\/p>\n
     appeared   before   land   acquisition   officer,   when   that   officer   had <\/p>\n
     undertaken efforts to find out market value of the acquired property.\n<\/p>\n
     He has  not given the rates of bricks or wood prevailing in 1984, rate <\/p>\n
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\n                                  91<\/span><\/p>\n
     of cement or steel then prevailing and even labour charges are not <\/p>\n
     mentioned.   He   has   not   pointed   out   regular   maintenance.     It   is, <\/p>\n
     therefore, obvious that in absence of this relevant material, it is not <\/p>\n
     possible to find out correctness or otherwise of his claim in Exh.195 <\/p>\n
     in this regard.   An expert like him has to describe the property in <\/p>\n
     requisite   details   and   thereafter   mention   the     prevailing   market <\/p>\n
     position also, so as to enable the Court or the authority to ascertain <\/p>\n
     the correctness of his stand by appreciating his line of application of <\/p>\n
     mind. Here, though CSR rates were made available to one witness of <\/p>\n
     State Government during his cross-examination and effort has been <\/p>\n
     made   to   discard   him,   Landowners   have   not   brought   that   rate   on <\/p>\n
     record and Shri Gandhi, has not pointed out that CSR also provided <\/p>\n
     rates for same or similar type of construction.   On the contrary, in <\/p>\n
     paragraph no.26, this witness has stated that he has given positive <\/p>\n
     weightage of 35% in respect of building no.1.  During arguments, it <\/p>\n
     was stated that the CSR rates consider cement and iron at controlled <\/p>\n
     rate and not at open market rate.  However, this fact and its use it <\/p>\n
     also   not   apparent   in   report   at   Exh.195.     The   report,   therefore, <\/p>\n
     appears to be prepared only on the basis of the assumptions which <\/p>\n
     the expert claims as supported by his experience, however, law does <\/p>\n
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\n                                   92<\/span><\/p>\n
     not permit use of said report for the purpose of determination of <\/p>\n
     valuation.  Landowners and said expert Shri Gandhi, ought to have <\/p>\n
     produced  relevant  basic  data,  so as   to enable   the  trial   Court  and <\/p>\n
     thereafter,   this   Court   to   understand   the   nature   of   exercise <\/p>\n
     undertaken   by   him   and   to   verify   it.     We   find   that   for   reasons <\/p>\n
     recorded by it to reject the report of Shri Kale, the trial Court also <\/p>\n
     ought to have rejected the report of Shri Gandhi.\n<\/p>\n
     48.                  Here, Shri Gandhi does not disclose search made by <\/p>\n
     him to find out age of construction and he remains satisfied with <\/p>\n
     accepting year of purchase as year of construction. He has not given <\/p>\n
     any   data   to   show   the   contemporary   rates   of   construction   then <\/p>\n
     prevalent in that area. He does not find it necessary to refer to CSR <\/p>\n
     rates or any material gathered by him for arriving at his rates. Thus <\/p>\n
     he refuses to supply anything to enable State to cross      check his <\/p>\n
     claim or to Court to evaluate it.  In ultimate analysis, one has to only <\/p>\n
     accept   his   word   or   the   his   experience   to   support   that   word.   He <\/p>\n
     includes   structures   without   plinth   and   also   values   first   floor   at <\/p>\n
     wrong rates. Depreciation rate applied by him is also not sustainable <\/p>\n
     in the light of above verdict of Hon’ble   Apex Court. We find that <\/p>\n
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\n                                   93<\/span><\/p>\n
     initial   burden   to   show   that   valuation   of   structures   by   LAO   is <\/p>\n
     incorrect has itself not been discharged by Landowners. By pointing <\/p>\n
     out cross examination of Shri Kale, effort was made to show that he <\/p>\n
     could not and   did not choose to substantiate exercise undertaken <\/p>\n
     therein.   It   is   not   sufficient   to   rebut   the   presumption   attached   to <\/p>\n
     award under Section 12 of Act.   Moreover that also does not mean <\/p>\n
     that Landowners automatically become entitled to something more <\/p>\n
     towards   costs   of   construction   or   as   compensation   for   structures.\n<\/p>\n
     Appreciation of evidence and  approach of Court in such matters can <\/p>\n
     be gathered from judgment in case of  P. Ram Reddy and  Others vs.  <\/p>\n
     Land   Acquisition   Officer,   Hyderabad   Development   Authority<\/a>  (supra).\n<\/p>\n
     Hon’ble   Apex Court has  held that    in  land acquisition  references <\/p>\n
     before Civil Courts, when witnesses give oral evidence in support of <\/p>\n
     the   claims   of   claimants   for   higher   compensation   the   in-effective <\/p>\n
     cross-examination of such witnesses, is not an uncommon feature if <\/p>\n
     regard   is   had   to   the   manner   in   which   claims   for   enhanced <\/p>\n
     compensation  in  land  acquisition  cases  are defended in  courts on <\/p>\n
     behalf of the State. It is observed that  if the courts were to accept <\/p>\n
     such statements of witnesses  as true merely because they are not <\/p>\n
     subjected   to   cross-examination   or   effective   cross-examination   or <\/p>\n
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\n                                    94<\/span><\/p>\n
     because evidence in rebuttal thereof has not been adduced, it would <\/p>\n
     amount to doling out public money to the claimants far in excess of <\/p>\n
     their legitimate entitlement for just compensation payable for their <\/p>\n
     lands. If such situation is prevented by courts dealing with claims for <\/p>\n
     compensation by testing the statements of witnesses for claimants on <\/p>\n
     the basis of probabilities, the Courts will have performed the duty <\/p>\n
     justly   expected   of   them.   Hence,   no   Court   which   tests   the   oral <\/p>\n
     evidence of the claimants on the touch-stone of probabilities calling <\/p>\n
     into   aid,   its   experience   of   life,   men   and   matters   and   find   such <\/p>\n
     evidence to be untrustworthy, the same cannot be found fault with <\/p>\n
     In Bhagwan Singh vs. State of Punjab(I) (supra) (Para 22), the Hon’ble <\/p>\n
     Apex Court states that resort to Section  145 of Evidence Act would <\/p>\n
     only be necessary if the witness  ‘denies’ that he  made the former <\/p>\n
     statement. In that event it would be necessary to prove that he did, <\/p>\n
     and ‘if the former statement was reduced to writing,’ then Section <\/p>\n
     145 requires that his attention must be drawn to those parts which <\/p>\n
     are   to  be   used   for   contradiction.   But  that  position   does   not  arise <\/p>\n
     when the witness admits the former statement. In such a case all <\/p>\n
     that   is   necessary   is   to   look   to   the   former   statement   of   which   no <\/p>\n
     further   proof   is   necessary,   because   of   the   admission   that   it   was <\/p>\n
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\n                                   95<\/span><\/p>\n
     made. Here,  We find that Shri Gandhi admits all his reports at Exh.\n<\/p>\n
     204,205 and   Exh.195.   We accordingly have refused to accept his <\/p>\n
     evidence and  report on valuation of structures. The land value also <\/p>\n
     has   been   worked   out   by   us   independently.  In   this   situation,   as <\/p>\n
     landowners have failed to bring anything on record to show that the <\/p>\n
     valuation   of   big   bungalow   or   other   bungalow   as   per   report   at <\/p>\n
     Exh.195, or then Exh. 195 can be looked into   and have failed to <\/p>\n
     substantiate their demand for enhancement of compensation on that <\/p>\n
     account,   no   relief   in   that   regard   can   be   given   to   them.   Merely <\/p>\n
     because the valuation by the Land Acquisition Officer and grant of <\/p>\n
     compensation   for   structures   is   not   found   to   be     substantiated, <\/p>\n
     burden  cast  by  law  on  Landowners   is   not  discharged.  Hence,  the <\/p>\n
     land   owners   cannot   claim   additional   compensation   for   these   two <\/p>\n
     structures.\n<\/p>\n
     49.           We   will   still   briefly   consider   the   valuation   exercise <\/p>\n
     undertaken by Shri kale and  Shri Gandhi. Later has used rate of Rs.\n<\/p>\n
     165\/-per Sq. ft. flat for entire big bungalow and  Rs. 150\/-per sq. ft.\n<\/p>\n
     for bungalow no. 2 to reach its total replacement cost. This rate is <\/p>\n
     same in Ex. 204 as also Exh. 195. He has used 4.5% on age 54 years <\/p>\n
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\n                                  96<\/span><\/p>\n
     of   both   these   structures   to   calculate   depreciation.   There   is   no <\/p>\n
     explanation   or justification for using this figure or the calculating <\/p>\n
     less depreciation in his evidence or report.  When he takes total life <\/p>\n
     of both these structures to be 85 years , replacement costs  per year <\/p>\n
     work   out   to   Rs.   17,385\/-for   big   bungalow   and     Rs.   5,121\/-for <\/p>\n
     second  bungalow.  Rs.  9,38,799\/-   is   therefore   depreciation   for   big <\/p>\n
     bungalow   for   54   years   and       Rs.   2,76,543\/-   is   therefore   total <\/p>\n
     depreciation for bungalow 2.  Even if the salvage value at the end of <\/p>\n
     the period of utility of 85 years is presumed “nil”, still the when Rs.\n<\/p>\n
     9,38,799\/- is deducted from Rs. 14,77,740\/-, Rs. 5,38,961\/- works <\/p>\n
     out to be the value of big bungalow as against Rs. 11,60,064\/-stated <\/p>\n
     by Shri Gandhi . Similarly, when Rs. 2,76,543\/-is reduced from Rs.\n<\/p>\n
     4,35,300\/-, Rs.1,58,757\/-   is  the  cost   of   bungalow  no. 2  while  he <\/p>\n
     mentions  it   to  be   Rs.  3,41,722\/-.  Thus   total   replacement  costs  of <\/p>\n
     both   these   bungalows   comes   to   Rs.   6,97,718\/-   only.   Thus   even <\/p>\n
     presuming or believing entire exercise of Shri Gandhi, the total costs <\/p>\n
     of   both   these   buildings   is   Rs.6,97,718\/-   while   he   takes   it   at <\/p>\n
     Rs.15,01,786\/-. His method or calculation do not find any support <\/p>\n
     at-least   on   record.   Though   his   report   shows   that   both   these <\/p>\n
     bungalows have completed more  than half of their life, depreciation <\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 17:46:58 :::<\/span>
\n                                   97<\/span><\/p>\n
     shown by him is not proportionate as he has used full replacement <\/p>\n
     cost method.  For  both bungalows,    depreciation  is  little  less than <\/p>\n
     25%  of replacement cost. Depreciation  amount is  21.49%     of  the <\/p>\n
     value worked out by him. The factors that prolong the life and utility <\/p>\n
     of the building, such as good maintenance, necessarily influence and <\/p>\n
     bring down the rate of depreciation are not on record. There is no <\/p>\n
     evidence   of   timely   or   annual   repairs.   On   the   contrary,   State   had <\/p>\n
     claimed   adjustment   of   Rs.   1,50,000\/-   spent   by   it   on <\/p>\n
     renovation\/repairs   of   big   bungalow   and     Trial   Court   has   not <\/p>\n
     accepted  it.    Methodology  of  Shri  Gandhi   runs  counter  to  similar <\/p>\n
     principles     illustrated   in  “Administrator   Genl.   of   West   Bengal   v.\n<\/p>\n
     Collector, Varanasi”(supra) by Hon’ble  Apex Court.\n<\/p>\n
     50.               Shri Kale had worked out cost of ground floor of big <\/p>\n
     bungalow at Rs. 5,98,900\/-and  of first floor at Rs. 2,94,000\/-. Value <\/p>\n
     of bungalow no. 2 reached by him is 2,47,980\/- only. He has then <\/p>\n
     taken the age of building to be 69 years and thereafter claims to <\/p>\n
     have calculated depreciation  as per page 14.40 of civil engineering <\/p>\n
     hand-book. His computation does not disclose the total life period <\/p>\n
     looked   into   by   him.   However,   it   appears   to   be   100   years.   His <\/p>\n
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\n                                  98<\/span><\/p>\n
     exercise is not accepted for valid reasons by Trial Court and   also <\/p>\n
     does not help in determination of market value. But as burden has <\/p>\n
     not been discharged by the Landowners, the grant in award can not <\/p>\n
     be disturbed.  His  cross examination  is  not sufficient to prove any <\/p>\n
     procedural or other error in method adopted by him or its result.\n<\/p>\n
     LAO had accepted his calculations and then deducted Rs. 1,50,000\/-\n<\/p>\n
     allegedly spent on renovation  by State. He therefore awarded Rs.\n<\/p>\n
     3,78,000\/- as compensation towards structures. Trial Court has set <\/p>\n
     aside this sum of Rs. 1,50,000\/-   as said expenditure has not been <\/p>\n
     established at all. Evidence on record does not establish any such <\/p>\n
     sum of Rs. 1,50,000\/- or any other sum spent on renovation. We <\/p>\n
     therefore maintain this finding of Trial Court and  grant Landowners <\/p>\n
     Rs.   5,28,000\/-   towards   the   structures.     Point   No.   D   is   answered <\/p>\n
     accordingly.\n<\/p>\n
     51.          As to Point No. E :-  As a result of this discussion, We find <\/p>\n
     the quantum of compensation payable to Landowners under various <\/p>\n
     heads as under :–\n<\/p>\n
     A.           Towards Lands:-                         Rs.  4311991.00.\n\n\n\n\n                                                    ::: Downloaded on - 09\/06\/2013 17:46:58 :::<\/span>\n                                 99<\/span>\n\n\n\n\n                                                                           \n     B-          Towards structures :- \n                 Maintained as per award. \n\n\n\n\n                                                   \n                 This includes Rs. 22,120\/-towards \n                 fence but nothing \n                 towards Trees.                          Rs.   528000.00.\n\n\n\n\n                                                  \n     C-          Towards Trees:-                        Rs.       2990.00.\n\n                 Sub-Total of A to C        =           Rs. 4842981.00.  \n\n\n\n\n                                     \n     D-          30% solatium u\/S 23(2)\n                    \n                 of the  Act \n                 on Rs.    4842981.         =         Rs.  1452894.00.\n                   \n                 Total   of A to D            =         Rs.  6295875.00.  \n\n                 Landowners have already \n                 received                   =            Rs.  2030116.00.\n      \n\n\n     E.               Net amount of compensation \n   \n\n\n\n                      payable on  plot no. 1\n                      (Land+Structure+Trees+ =          Rs. 4265759.00.    \n                       Solatium)\n\n\n\n\n\n     F.          Addl. component at 12% on \n                 Rs.  4842981\/- from 19\/2\/1984 \n                 till 6\/8\/1985  i.e., for\n                 1 year and  5 months and  \n                 19 days (533 days)     =          Rs.   848649.00.\n\n\n\n\n\n      \n                 Compensation towards plot \n                 1 and  Rental compensation \n                 - E and  F.                 =                Rs. 5114408.00.\n\n\n\n\n                                                   ::: Downloaded on - 09\/06\/2013 17:46:58 :::<\/span>\n                                      100<\/span>\n\n\n<\/pre>\n
     Interest   at  9%   on   this   sum   of   Rs.   51,14,408\/-   from   6\/8\/1985   to <\/p>\n
     5\/8\/1986   and     thereafter,   at   15%   till   date   of   its   payment   to <\/p>\n
     Landowners.\n<\/p>\n
                      If Landowners have already recovered anything in excess <\/p>\n
     of what We have found them entitled to, State Government is free to <\/p>\n
     recover the same as per law with 15% interest on it from date on <\/p>\n
     which it was paid by it till its recovery back by State Government.  .\n<\/p>\n
                            Accordingly, We proceed to pass following order:–\n<\/p>\n
                                                  ORDER.\n<\/p>\n
                              Landowners are held entitled to receive :–\n<\/p>\n
         1. Rs.  42,65,759.00. (Forty Two Lac Sixty-Five Thousand Seven <\/p>\n
             Hundred Fifty Nine Only) towards acquired lands, structures,
\n             trees and  solatium.\n<\/p>\n
         2. Rs.  8,48,649.00 (Eight Lac Forty Eight Thousand Six Hundred <\/p>\n
             Forty  Nine  only)   towards  12%   additional   component   under
\n             Section  23(1-A) of Act.\n<\/p>\n
         3. Interest at 9% on  above sum of Rs. 51,14,408.00 (Fifty One
\n             Lac Fourteen Thousand Four Hundred and  Eight Only)  from <\/p>\n
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\n                                      101<\/span><\/p>\n
                6\/8\/1985 to 5\/8\/1986 and   thereafter at 15% till date of its <\/p>\n
                payment to Landowners.\n<\/p>\n
         4. Appeal of State is partly allowed  and  that of Landowners is
\n                also dismissed. However, in the circumstances,  parties to bear <\/p>\n
                costs as incurred.\n<\/p>\n
         5. If Landowners have already recovered anything in excess from <\/p>\n
                State , State Government is free to recover that excess sum as <\/p>\n
                per law with 15% interest on it from date on which it was
\n                paid   to   Landowners   till   its   recovery   back   by   State <\/p>\n
                Government.\n<\/p>\n
         6. Judgment dated 31\/12\/1999 delivered by Joint Civil Judge, <\/p>\n
                Senior   Division,   Amravati   in   Reference   proceedings   land
\n                acquisition   case   13   of   1988   is   accordingly   modified   and <\/p>\n
                substituted.\n<\/p>\n
         7. Decree be drawn accordingly in both matters.\n<\/p>\n
                     JUDGE                                                JUDGE\n\n     Dragon. \n\n\n\n\n                                                      ::: Downloaded on - 09\/06\/2013 17:46:58 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Late Narayanlal Bansilal vs The State Of Maharashtra on 28 September, 2011 Bench: B. P. Dharmadhikari, A.P. Bhangale 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. FIRST APPEAL 142 OF 2000 WITH FIRST APPEAL 53 OF 2001 WITH CIVIL APPLICATION (F) No. 2282\/2011. ig ………… FIRST APPEAL No.142\/2000. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-88489","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nLate Narayanlal Bansilal vs The State Of Maharashtra on 28 September, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/late-narayanlal-bansilal-vs-the-state-of-maharashtra-on-28-september-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Late Narayanlal Bansilal vs The State Of Maharashtra on 28 September, 2011 - 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