FIRST APPEAL 604 of 1995 on 11 January 1973

IN THE HIGH COURT OF JUDICATURE AT BOMBAYCIVIL APPELLATE JURISDICTION

FIRST APPEAL NO. 604 OF 1995

The State of Maharashtra.. Appellant(Through the Special Land Acquisition Officer.(Orig.OpponentMetro Centre No.4, Panvel, District. Raigad

v/s.

Shri Prakash Vasudeo Deodhar

.. Respondent

ALONGWITH

FIRST APPEAL NOS.605/1995 TO 621/1995, 22/1996 TO 24/1996,561/1997, 388/89, 390/1989, 394/1989, 399/1989, 400/1989,403/1989, 408/1989, 1366/1988, 706/1989, 1061/1989, 1065/1989,1098/1989, 456/1991, 458/1991, 463/1991, 462/1991, 757/1992,395/1993, 758/1992 FILED BY THE STATE.

FIRST APPEAL NOS.1414/1996, 1429/1996, 1428/1996, 1423/1996,1418/1996, 1427/1996, 1421/1996, 1415/1996, 1420/1996,1430/1996, 1426/1996, 1422/1996, 1416/1996, 1419/1996,1431/1996, 1417/1996, 1425/1996, 1424/1996, 1373/1996 TO1383/1996, 1055/1989, 1056/1989, 665/1989, 1066/1989, 664/1989,663/1989, 668/1989, 670/1989, 1092/1989, 1038/1989, 1045/1989,1062/1989, 1064/1989, 119/1991, 1127/1991, 729/1991 FILED BYTHE CLAIMANTS.

AND

CIVIL APPLICATION NOS. 4246/1995, 4243/1995, 4314/2005,789/1990, 6099/94, 5781/1991, 5567/1992, 2214/2008, 2215/2008, 2216/2008, 4922/2003, 4923/2003 FILED BY THE STATE.

CIVIL APPLICATION NOS. 3513/2007, 4858/2003, 1636/2007,3732/2006, 3016/2003, 2219/2008, 4338/2003, 4853/2003,4852/2003, 4265/2003, 939/2003, 670/1989, 4857/2003, 4070/2001,3924/2001, 3932/2001, 4716/2003, FILED BY THE CLAIMANTS.

AND

CROSS OBJECTION ST. NOS. 33261/1997 AND 395/1993.

Mr. K.K. Tated, Assistant Government Pleader for the State.Mr. R.V. Pai with Mr. S.M. Kamble for the claimants.Mr. N.P. Shimpi i/by Mr. P.K. Dhakephalkar for the respondentNos.1A in F.A. No.388 of 1989.

CORAM :SWATANTER KUMAR, C.J. &V.M. KANADE, J.

Date of pronouncing the judgment : 2nd June, 2008Date of reserving the judgment : 12th June, 2008

JUDGMENT (Per Swatanter Kumar, C.J.)

By a common judgment dated 14[th] October, 1994, thelearned District Judge, Raigad­Alibag at Alibag disposed of number ofLand Acquisition References made to the court by the Collector under section 18 of the Land Acquisition Act (hereinafter referred to as `theAct') and some petitions filed by the claimants under section 28A ofthe Act. While dealing with these references and petitions, thelearned reference court enhanced the compensation payable to theclaimants for acquisition of their respective lands to Rs.35/­ per sq.mtr. for the land near to Highway while the lands situated beyond1000 metres from Highway were awarded the compensation at therate of Rs.25/­ per sq.metre. The State Government felt aggrieved bythe enhanced compensation awarded by the court to the claimantsand have preferred 44 appeals and one cross­objection in claimant'sappeal against the said judgment. The claimants felt that they wereentitled to even higher compensation and therefore, have also filed46 appeals before this court besides one cross­objection in Stateappeal. All these appeals/cross­objections raise common questionsof fact and law for determination. Therefore, we would dispose of allthe 90 appeals and two cross­objections filed by the parties asnoticed in the title of the judgment.

2. Now, we may notice the necessary facts giving rise to thepresent appeals. The State Government issued a notification undersection 4 of the Act on 3[rd] February, 1970 intending to acquire landsfrom Panvel and Kamothe villages in Raigad district for theresidential­commercial project to be developed by CIDCO. Infurtherance to this notification, declaration under section 6 of the Actwas issued on 11.1.1973 read with erratum dated 12[th] February,1973. The Collector while exercising the power of Special LandAcquisition Officer after following due procedure prescribed under theprovisions of the Act, made different awards during the period 1975 to1985. The award under section 11 of the Act was declared during thisperiod and compensation between Rs. 1.5 to Rs.10 per sq. metre wasawarded. It appears from the record that petitions under sections 28Awere also filed and further awards were passed on 16[th] September,1987 with respect to 13 land acquisition proceedings and thecompensation was awarded at the rate ranging from Rs.12 to Rs.18per sq. meter. Dissatisfied with these awards, the claimants hadmade applications to the Collector for making references to the court of competent jurisdiction under section 18 of the Act. The landreference Nos.110/89 to 117/89 and 119/89 to 123/89 were preferredby the claimants under section 28A(3) of the Act. As already noticed,all these proceedings were based upon the common evidence. Thelearned reference court while enhancing the compensation held asunder:

“40.The market value has also got fantasticbearing on the terms of payment or on the terms ofconsiderations which has to be fixed in various saletransactions. Any commercial transaction, therefore, ifhaving a weightage of deferred payment, the basisvalue of the immovable property thereunder shoots upeven to the limit of sky with a noticiable difference anddistinction. This has got to be considered as annexedwith the impact of rate of interest. That is why theimpact of interest on call money also has to beconsidered even while fixing the value of the lands soacquired.

41. To my mind Mr. Joglekar had followed thecorrect method while fixing the market value of theselands by an assessment of multiplier as demandversus supply. No doubt that this rule has also gotexception of the case where the prices of such landseven in respect of small acquisition of lands or smallpieces of lands such as land situate at Nariman Pointor Bandra Complex, which has rightly been consideredby Mr. Jogalekar while arriving at the conclusion offixing the approximate value of these lands as at the rate of Rs.60/­ per square meter by treating all thesepieces of lands at par.

42. The minimisation of distance fromChurchgate to Panvel because of Thane Creek bridgeby a distance of about 23 k.m.s. also has beencorrectly taken into account by Mr. Jogalekar in itsproper perspective. Although Mr. Ambike had made areference of this aspect in his valuation report he doesnot seem to have given due account to it at the time ofactually fixing the rate of value.

43. Mr. Jogalekar has also rightly pointed outthe mistake committed by the Special Land AcquisitionOfficer for fixing the value of these lands in betweenthe rate of Rs.4/­ to Rs.10/­ per square meter. TheSpecial Land Acquisition Officer appears to have notconsidered the effect of large scale acquisition oflands while fixing the rate of assessment at all. That iswhy a comment of Mr. Jogalekar on the capacity ofthis Special Land Acquisition Officer, assumes a fullbearing and full importance when he said that thevaluation of a large scale acquisition of the lands hasto be done by a person who is the best expert or whohas a foresight and nose for valuation.

44. It can only be said about the cross­examination of Mr. Jogalekar that it is only attemptedby the Government to expose Mr. Jogalekar bycomparing his valuation work with the work done byunexperienced hands of Special Land AcquisitionOfficer. It seems from the entire trend of cross­examination of Mr. Jogalekar that the work of expertfor the Government, perhaps, had not then beencompleted so as to give data to the Government Pleader to cross­examine the expert Mr. Jogalekar.That part, the importance and the ultimate impact ofthe work of valuation done by Mr. Jogalekar, therefore,does not lose its intrinsic value throughout his cross­examination and entire evidentiary value of thedeposition of Mr. Jogalekar, therefore, remainedunshaken and unfettered.

45. Now comes the question as to whether allthese lands can be treated as at par as was done byMr. Jogalekar while opining in the report that the landscould be assessed at the common rate of Rs.60/­ persquare metre, irrespective of their distance from theHighway. To my mind the distance from the NationalHighway of all these lands group wise will have apositive bearing and effect on the valuation to beannexed to each of these lands.

46. having considered, therefore, the reports ofthe two Experts viz. Mr. Shrikant Jogalekar andPrabhakar Ambike and further having considered theevidence led by the Claimants by producing variousJudgments and various Valuation reports, I think thatthe lands can as well be classified in five groups. Thelands which are situate just abutting the Highway andwhich are further situate within the distance of 300metres from the Highway therefore, have beenevaluated by me as at the rate of Rs.35/­ (Rs. Thirtyfive) per square metre, while I fix the rate of valuationas at Rs.30/­ per square metre for the lands which aresituate within the distance of 300 meters to 1000meters from the Highway and further fix the rate ofRs.25/­ per square metre for other lands which aresituate beyond the limits of 1000 meters from theHighway. The valuation of the lands of Kamothe has been done by me in consonance with the distance ofthe lands from the Highway. The lands which are,therefore, found to be near Highway have beenassessed by me ultimately at the rates of Rs.35/­ persquare metre while other lands of village Kamothebeyond the distance of 1000 metre have beenassessed at the rate of Rs.25/­ per square metre.”

3. We may also notice that during the pendency of theproceedings which have given rise to the present appeals, differentjudgments of this court had been pronounced in relation to the sameacquisition and the two villages in question viz. Panvel and Kamothe.Reference in this regard can be made to a Division Bench judgmentof this court in the case of The State of Maharashtra v. Bama BaluTembhe, First Appeal No.382 of 1984, decided on 19[th] March, 1987,wherein the court had fixed the rate of compensation payable to thelands situated at village Panvel between Rs.14/­ to Rs.16/­ per sq.metre and similar compensation was awarded in respect of the landssituated at village Kamothe. In the case of Chairman, JawaharNagar Co­operative Housing Society Ltd. v. State of Maharashtra,2001(4) Mh. L.J. 571, the Division Bench of this court after

considering various land acquisition references as well as thejudgments of this court, awarded compensation at the rate of Rs.15/­per sq. metre for the lands situated in village Kamothe. In State ofMaharashtra v. Ambaji Gopal Mali and others, First Appeal No.449 of1986 decided by the Division Bench of this Court on 3[rd] July, 1986 thereference court had awarded compensation at the rate of Rs.15/­ andin the case of State of Maharashtra v. Smt. Kamali Kashav Mhatreand others, 2005(1) All M.R. 459, another Division Bench of this courtwhile considering all cases including the judgment in the case ofBama Balu Tembhe (supra), awarded compensation at the rate ofRs.25/­ per sq.metre to the lands falling within 750 metres of theNational Highway, at the rate of Rs.23/­ per sq. metre for the landsfalling between 750 and 1500 metres and in respect of the thirdcategory, at the rate of Rs.21/­ per sq. metre for the lands beyond1500 metres. It will be useful at this stage itself to notice the findingrecorded by the Division Bench:

“ 6.We now come to the last issue in so far asthe fixation of market value is concerned. As we havenoted earlier, the Reference Court for the purpose of fixing market value, categorised the land into fourgroups and accordingly awarded compensationranging between Rs.15/­ to Rs.25/­. In respect of thevery same notification various other awards were madeby the Reference Court and in respect of which severalappeals had come up before this Court, being FirstAppeal No.754 of 1986 alongwith other appeals whichcame to be disposed of by a learned Division Bench ofthis Court (S.W. Puranik & D.J. Moharir, JJ.) on 25­26.02.1993. The lands involved there were situatedwithin the Municipal limits of Panvel and Kamothe.After considering the material which had come onrecord including earlier awards made in the year 1966,the learned Division Bench divided the land into Group1, Group 2, Group 3, Group 4A and Group 4B. Inrespect of the first group it awarded Rs.25/­, in thesecond group it awarded Rs.23/­, i the third group itawarded Rs.22/­ and in the fourth (A) and (B) group itawarded Rs.20/­ each. Against the judgment of theDivision Bench SLP was preferred by the StateGovernment, which was rejected.

Another group of appeals being First AppealNo.382 of 1984 came up before another DivisionBench of the Court (Shah & Kotwal, JJ) which weredisposed of by judgment pronounced between03.03.1987 and 19.03.1987. The area included PanvelVillage, Asudgaon village, Kamote Village andKalamboli Village. The Division Bench noted that it ison record and not in dispute that Panvel is located onthe Bombay­Pune National Highway, where the landshave acquired non­agricultural potentialities. It hadbecome a centre for local trade and commerce. It isalso a place of Taluka headquarter having aMunicipality for a very long time. The lands under

acquisition are in the extended Municipal area, which isquite adjacent and practically encircling Panvel Townwhich has commercial activities and educationalfacilities. The Bombay­Pune Road and Diva­Panvelrailway pass through this area. At a short distance tothe east of Bombay­Pune National Highway within theextended Municipal limits lies the Industrial Estatewhere 35 factories are located. There is also a Co­operative Housing Society called Cosmopolitan Co­operative Society which has purchased lands forconstruction of houses for its members. Abutting theNational Highway at some distance to the north of theIndustrial estate is the factory of Jenson & Nicholson inexistence for over six years prior to the notificationunder section 4. A few years prior to the presentacquisition, lands had been acquired for the S.T. busstand, chowkidars' quarters and so on. To the south ofthe acquired area is the junction of the two NationalHighways viz. Bombay, Pune and Bombay­Konkan­Goa road, hardly at a distance of two kms., proceedingto the north there is the junction of two major highwaysviz. Bombay­Pune Highway and Sion­Pune Highway.Various other aspects were also noted. It was urgedby Mr. Paranjape, appearing for the claimants in thatappeal that the distance of the National Highwayshould be the sole criteria for fixing the market value ofeach of the acquired lands. The learned DivisionBench noted that cannot be the only criteria for fixingthe market value though there is no doubt that theproximity of land from the road would be a veryrelevant consideration alongwith other factors fordetermination of the market value. The Division Benchnoted that in their opinion several other factors such asthe already existing non­agricultural development ofthe trend or possibility of further development in a particular direction or locality has to be taken intoaccount alongwith the advantage of nearness of theland to the highway, and based on this the learnedDivision Bench fixed the compensation.

.............................

8. The first group will consist of the landssituated within 750 mts. of the National Highway wherethe market value is fixed at Rs.28/­. Considering 10%deduction and rounding the figure we fix the marketvalue at Rs.25/­. This will be the market value for allsuch lands in the group of appeals.

The second group will consist of landssituated between 750 and 1500 sq. mts. In respect ofthese lands we fix the market value at Rs.26/­.Considering 10% deduction and rounding up the figurewe fix the market value at Rs.23/­ per sq. mt.

The third category will include the landsbeyond 1500 sq. mt. We fix the market value of theselands at Rs.23.50 p. and after deducting 10% androunding the figure, fix the market value at Rs.21/­.”

4. It is the common case of the parties before us that substantially the evidence led by the parties in the present case issimilar to the evidence that had been led by the parties in the previousland references. However, the valuation reports, Exhibit 30 and

Exhibit 49, were proved in accordance with law in the present case.While Exhibit 30 has been submitted by Modak Pangarkar ArchitectsPvt. Ltd. on behalf of the Claimants, Exhibit 49 has been submitted byAmbike Consultants, Engineering and Managing Consultants andGovernment Approved Valuers on behalf of CIDCO. Both thesevaluation reports were considered and discussed in the impugnedjudgment and despite the fact that under Exhibit 30 the market valueof the land was stated to be Rs.60/­ per sq. mtr. as on 3[rd] February1970, according to Exhibit 49 the land was divided into three differentcategories and the market value of the lands was stated to beRs.11/­, Rs.14/­, Rs.16/­ and Rs.18/­ per sq. mtr., depending on thefrontage on the National Highway and still awarded the compensationat the rate of Rs.35/­ and Rs.25/­ per sq. mtr. respectively.

5. The correctness of the above findings of the ReferenceCourt have been questioned on behalf of the State, inter alia, on thegrounds : (a) the determination of fair market value at the rate ofRs.35/­ per sq. mtr. particularly is based on no evidence and in fact the land Reference Court has fallen in error of appreciation ofevidence in awarding such high compensation. According to theRespondent State, the compensation could not in any case exceedRs.16/­ per sq. mtr. as awarded in First Appeal No.382 of 1984 in thecase of Bama Balu Tembhe (supra). (b) Wherever the award wasmade prior to the amendment of the provisions of Section 23(1­A) i.e.30[th] April 1982 the Claimants are not entitled to the benefit of the saidprovisions in accordance with the judgment of the Supreme Court. Inthe present case, some of the awards were made right from 1976 to11[st] March 1982 and in support of this contention the Division Benchjudgment of this Court in the case of Smt.Kamali Keshav Mhatre(supra) is relied upon. (c) According to the appellants, the lands inthe present case are also situated at quite a distance from theNational Highway and, therefore, the learned reference court couldnot have awarded compensation either at the rate of Rs.35/­ orRs.25/­ per sq.mtr. while applying the belting system to different kindof lands.

6. Now we will proceed to discuss, though collectively, themerit or otherwise of these contentions. It may be noticed here thatthe Claimants who have filed Petitions under Section 28 of the Acthad originally claimed compensation only at the rate of Rs.25/­ per sq.mtr. but during the pendency of the Reference/determinationproceedings, application for amendment was filed which was allowedby the Reference Court vide its order dated 3[rd] December 1992 andthe Claimants by way of amendment claimed compensation at therate of Rs.60/­ per sq. mtr as valued by their Valuer. Exhibit 49 wasproved by P.S. Ambike whose statement is at Exhibit 45, while Exhibit30 was proved by S.V. Joglekar whose statement is Exhibit 29. Boththese experts were called by the respective parties and to a limitedextent they are expected to support the case of their respectiveclients. While Exhibit 30 indicates the value of the land as Rs.60/­ persq. mtr., Exhibit 49 declares the market value of the land on the samedata between Rs.11/­ to Rs.18/­ per sq. mtr. One report is declaringexcessive market value, while the other is much on the lower side.Even if both these reports which are stated to be supported by certain instances and data are considered, the average market valuewould come anywhere between Rs.29/­ to Rs.34/­ per sq. mtr. Thereports of the experts were discussed by the Land Reference Courtand after noticing their statements in examination in chief and thecross­examination, discarded the evidence of the expert Mr. Ambike,led on behalf of the Government in paragraph 34 of the judgment.We have no reason to differ with the view taken by the ReferenceCourt in this regard. However, as already noticed, even on the basisof average of these two reports, the value of the land can at best besaid to be ranging between Rs.29/­ to Rs.34/­ per sq. mtr. dependingon the location and utility of the lands in question. This we are merelynoticing for reference purpose and would not like to base our findingsin relation to fair market value of the land on these reports.

7. In First Appeal No.382 of 1984 it was specifically noticed bythe Bench that the lands in those cases were situated away from theNational Highway and, therefore, they were awarded compensation atthe rate of Rs.14,/­ to Rs.16/­ per sq. mtr. in relation to the lands situated in the revenue estate of Village Panvel and Kamothe. Atpages 121 and 122 of the judgment of the Division Bench in FirstAppeal No.382 of 1984, it was specifically noticed that the piece ofland involved in those cases was near to Sion­Panvel road but wasfar away from Highway. The lands there were also far away fromJawahar Industrial Estate and the distance was more than 900 mtrs.In any case, the judgment of this Court in the case of Ambaji GopalMali (supra), the compensation of Rs.15/­ as awarded by theReference Court was interfered by the Division Bench of this Courtand even Appeal preferred by the State against that order before theSupreme Court was dismissed. Both these judgments along withother land references relating to the same land and Notification wereconsidered in detail with regard to different judgments of the SupremeCourt as well by the Division Bench of this Court in the case ofSmt.Kamali Keshav Mhatre and compensation varying from Rs.21/­ toRs.25/­ by categorising the lands into three categories was awardedby the Court. That judgment has also attained finality as the Statehas not challenged the said judgment before the Court of competent jurisdiction and we are informed that the compensation in terms ofthat judgment has already been paid to the Claimants.

8. From the records of the Reference Court, it appears that nonew sale instances had ever been produced or proved by the partiesand the evidence was restricted to the awards filed on record and theevidence of the experts. In face of the limited evidence led by theparties, the earlier awards filed on record can be a good precedent fordetermining the fair market value of land in question. It is a settledprinciple of law that the earlier awards and judgments of the Courtscan be a good guide for determining the market value of the land ason the date of Notification. Reference can be made to the judgmentof the Supreme Court in the case of Karan Singh vs. Union of India,1997 (8)SCC 186. In the case of Kamali Keshav Mhatre(supra), thelands were located near to the National Highway and this fact wasclearly noticed by the Court in its judgment. In that case, the land hadbeen categorised into three different categories, one falling within 750metres of the National Highway, lands falling within 750 to 1500

metres and lands beyond 1500 metres. They were awardedcompensation at the rate of Rs.25/­, Rs.23/­ and Rs.21/­ respectively.This judgment of the Division bench was pronounced on 31[st] March2004 while the judgment of the Reference Court under Appeal wasmade on 14[th] October 1994. Obviously the Land Reference Court didnot have the benefit of perusing the judgment of the Division Bench ofthis Court being a judgment subsequent to the date of pronouncementof the award of the Reference Court. The Land Reference Court hasnot discussed any evidence on the basis of which it has arrived at thefigure of Rs.35/­ per sq. mtr. for the lands within 300 metres of theNational Highway. It is true that the Reference Court can applycertain amount of guess work while determining the compensation,but it is necessary that there has to be basic evidence to support sucha finding, though a limited increase or decrease on guess work couldbe awarded by the Court. Reference can be made to a Division Benchjudgment of this court in the case of (Chunnibai Kalidas Patel v. Stateof Maharashtra) 2007 (4) Mh.L.J. 753, where it is held that the courthas to apply certain guess work within its reasonable limits to arrive at a fair market value of the lands acquired. Except the valuation reportsExhibit 30 and Exhibit 49 which have been rejected by the ReferenceCourt, there is no evidence to show that value could be determined atthe rate of Rs.60/­ or Rs.35/­ per sq. mtr. We as an equi Bench arebound by the judgment and in any case have no reason to differ withthe view taken by the Division Bench. Thus, following the marketvalue determined in that judgment, we also award compensation tothe Claimants for acquisition of the lands as under :

(a) Lands falling within 750 metres of the National Highway – Rs.25/­ per sq. metre. National Highway – Rs.25/­ per sq. metre.

(b) Land falling within 750 to 1500 metres of the National Highway – Rs.23/­ per sq.metre. of the National Highway – Rs.23/­ per sq.metre.

(c) Land falling beyond 1500 metres

of the National Highway – Rs.21/­ per sq. metre.

9. The other contention raised on behalf of the State is also tobe accepted and the contention of the Claimants that they are entitledto all the benefits of Section 23(1­A) even if the awards werepronounced by the Collector prior to 30[th] April 1982 is to be rejected.

The Division Bench of this Court in the case of Smt.Kamali Keshav Mhatre (supra), clearly answered this question in favour of the Stateand it will be useful to refer to the findings recorded by the DivisionBench in this regard as under :

“ The argument sought to be advanced on behalf ofthe claimant is that, the ratio that would not apply toan application made under section 28(A). At thehighest it is contended that the ratio of thosejudgments can be extended to those proceedingswhich arose out of reference under Section 18 orSection 30 of the Land Acquisition Act. We are afraidwe cannot countenance such an argument. If it is notopen to the Courts to award compensation undersection 23(I­A) where the award was made before30/04/1982 or who had applied under section 18 orwhere; dispute was referred under Section 30 of theLand Acquisition Act to get the additionalcompensation, merely because an additional righthas been conferred on the claimant to apply undersection 28(1­A), would not result in such claimantbeing entitled to benefits which otherwise were notavailable to claimants where awards were passedbefore 30/04/1982. The Section would have to beread to mean that under Section 28(A) also, thoseclaimants would be entitled to the benefit underSection 23(A) which were available to the claimantsin respect of whom proceedings were pending beforethe Collector on 30/04/1982. The contentiontherefore, advanced on behalf of theclaimants/appellants will have to be rejected. Thecontention of the State will have to be upheld only in those appeals where proceedings were pendingbefore the Collector on 30/04/1982 and award undersection 11 was not made would be entitled tocompensation under section 23(1­A). In other wordsproceedings must have been pending before theCollector on 30/­4/1982 and no award had beenmade before the date. In all such cases the appealto that extent will have to be allowed and the order ofReference Court awarding compensation undersection 23(1­A) will have to be set aside.”

10. In addition to the above reasoning, we may also add herethat the proceedings before the Reference Court whether by way ofPetition under Section 28­A of the Act or under Section 18 of the Actare proceedings before the Court of competent jurisdiction. The awardmade by the Collector is in exercise of the powers vested in himunder Section 11 of the Act. The award can only be interfered by thejudicial process either in a reference under Section 18, 28A or by theHigh Court in exercise of its appellate jurisdiction. The award underSection 11 thus is result of a statutory proceedings and quasi judicialpowers vested in the Collector and if that exercise was completedprior to the date of amendment i.e. 30[th] April 1982, it cannot be said that because proceedings under Section 28­A are taken, the awardwould stand wiped out. For example, in cases where proceedingsunder Section 28A are not initiated by the Claimants who had notavailed of remedy under Section 18 remedy as well, for them theaward would remain intact and whether they would be entitled toreceive the benefit of Section 23(1­A) of the Act or not wouldobviously depend upon the date of the award made under Section 11of the Act. Resultantly, while following the reasoning given by theDivision Bench in the case of Smt.Kamali K. Mhatre (supra), we alsohave no hesitation in accepting the contention raised on behalf of theState in this regard.

11. In these appeals, the parties have filed some civilapplications. As many as nine applications have been filed, six by theState and three by the claimants, for setting aside abatement andbringing the legal representatives of the deceased­respondents onrecord. Six applications viz. Civil Application Nos.4246/1995,4243/1995, 789/1990, 6099/1994, 5567/1992, 5781/1991 have been filed by the State praying for stay of the judgment of the referencecourt and that the State should not be directed to pay the entireenhanced compensation to the claimants. Still thirteen civilapplications have been filed being Civil Application Nos.4858/2003,1636/2007, 3732/2006, 3016/2003, 4338/2003, 4265/2003, 939/2003,670/1989, 4857/2003, 4070/2001, 3924/2001, 3932/2001, 4716/2003,by the respondents­claimants in appeals by the State and one cross­objection filed by the respondent No.6 for leading additional evidenceand lastly, civil application No.3513 of 2007 has been filed forrestoration of the appeal. It may be noticed that none of the non­applicants have filed replies to these applications and there was noserious opposition to these applications even during the course ofhearing. The applications were pending before the court forconsiderable time and we have heard all these applications along withthe appeals. In some applications parties have prayed for leadingadditional evidence, including Civil Application No.1636 of 2007, andparagraph 3 of which reads as under:

“3.The applicants state that the additionalground to be added in memo of Appeal, isnecessary for asserting the fundamental right givento the Applicants under the Second Proviso toArticle 31A of the Constitution of India. Theapplicants are holding agricultural lands, theapplicants are agriculturists, and the applicants arecultivating their lands personally as contemplatedby law and their Land holding is within the ceilinglimits. Almost all the aforesaid fact have eitherbeen brought on record either explicitly or byimplication necessary or otherwise. However, thisHon'ble Court is likely to require Additionalevidence to enable it to pronounce its judgmentbased on the aforesaid additional ground and inany case, as the applicants are pressing theaforesaid ground in support of their fundamentalright. There in substantial cause to allow them tolead evidence on the aforesaid point, documentaryand/or orally.”

12. However, in other applications, the applicants have prayedfor permission to lead additional evidence by producing on record theawards which have been made during the pendency of theproceedings or even after passing of the judgment by the learnedreference court. In civil application No.4858 of 2003, reference hasbeen made to certain judgments and awards which are placed onrecord.

13. As far as these applications for additional evidence areconcerned, no specific ground has been taken as to why theseawards were not placed on record of the trial court when initially, thecases were fixed for evidence. Some of these awards relate todifferent villages like Raigad and Alibag and no details or particularsof these awards have been given. Copies thereof have not beenannexed to these applications. Besides the question of relevancy,these awards were ever in the knowledge of the applicants. Theapplications are vague. Mere allegation that these documents werenot in existence, is not sufficient as even on the date of decision ofthese cases have not been given. The award in the present case wasmade on 14[th] October, 1994. There was sufficient direct evidencebefore the reference court to determine the matters in controversy inaccordance with law. The applicants are expected to make out asufficient ground for permission to lead additional evidence as itcannot be merely treated as a matter of routine. The cases havebeen decided after years. The callousness on the part of the applicant is also obvious from the fact that relevancy of these documents couldnot be examined by this court as they have failed to annexe thecopies of the documents sought to be placed on record by way ofadditional evidence.

14We may also notice that there is sufficient evidence onrecord for determining the market value and particularly, the DivisionBench judgment of this court in the case of Smt. Kamali K. Mhatre(supra) squarely apply on facts and law to the present case as suchno prejudice would be caused to the applicants even if their requestwas disallowed. It needs to be noticed that in the applicationreference has been made to a Division Bench judgment of this Courtin First Appeal No.754 of 1986. Then it is averred that this award orjudgment could not be placed on record because it was subsequent tothe judgment impugned in the present appeals. This averment isfactually incorrect in asmuch as First Appeal No.754 of 1986 wasdecided by a Division Bench of this Court on 25[th]/26[th] February 1993and has been even reported as 1993(3) Bombay Cases Reporter, page 54. The lands in those cases were acquired from Village Panveland Kamothe, the notification of which was issued on 3[rd] February,1970. The Bench had awarded compensation at the rate of Rs.25/­per sq. mtr. Thus, the application is based on incorrect averments.Furthermore, it can also be noticed that judgments of other DivisionBenches subsequent to the judgment in First Appeal No.754 of 1986have already been placed on record wherein similar compensation ofRs.25/­ per sq. mtr. was awarded for acquisition of lands from thesame villages. For the reasons aforementioned, we are not inclinedto allow the application and consequently, all the thirteen applicationsfor leading additional evidence are hereby rejected, however, withoutany order as to costs.

15. In the applications filed by the State seeking stay of award, noorder needs be passed as we are disposing of the main appealitself. The nine applications for condonation of delay filed by theparties are allowed as no reply to these applications has been filedand, in fact, there is no opposition by the non­applicants to these

applications. The legal representatives of the deceasedrespondents, thus, are permitted to be brought on record. The delaycaused in filing these applications is condoned. All the added legalrepresentative shall be entitled to the benefits of the judgment inaccordance with law. Resultantly, all the nine applications are,accordingly, disposed of. Civil application for restoration of theappeal, as there being no opposition, is also allowed. The appealin question is restored to file and is disposed of along with thisjudgment.

16.

16. For the reasons afore­recorded, we partially allow theAppeals filed by the State and the Appeals and Cross Objections filedby the Claimants are dismissed.

17. The Claimants would be entitled to compensation foracquisition of their lands as under :­

(a) Lands falling within 750 metres of the National Highway – Rs.25/­ per sq. metre.

(b) Land falling within 750 to 1500 metres of the National Highway – Rs.23/­ per sq. metre.

(c) Land falling beyond 1500 metres of the National Highway – Rs.21/­ per sq. metre.

18. The Claimants would also be entitled to get benefit ofSections 23(1)(A), 28 and all other statutory benefits subject to thelimitation that wherever the awards have been made prior to the dateof amendment i.e. 30[th] April 1982, the Claimants would not be entitledto receive the special benefits under Section 23(1­A) of the Act.

19. All the Appeals, Cross­Objections and Civil Applications aredisposed of accordingly leaving the parties to bear their own costs.

CHIEF JUSTICE

V.M. KANADE, J.