SPECIAL LAND ACQUISITION OFFICER MHADA Vs. ZARINE ASHRAFALI JARIABHAI MANSING TRUSTEE OF NOOR BAUG CHARITABLE TRUST

JUDGEMENT

(1.) THIS is a reference under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) which has been made by the Special Land Acquisition Officer, MHADA, Mumbai for determination of the amount of compensation since the claimants are not satisfied with the amount of compensation awarded by him.

(2.) THE property acquired is the land of the entire first floor admeasuring 265. 19 sq. mtrs. i. e. 2853-50 sq. ft. of building known as Nur Baug, Dongri situated at Babulal Tank Road, bearing Land Survey No. 2023, of Mandavi Division for the Rationing Office for the facilities of the citizens of Mumbai city. This property belongs to the trust Noorbaug Charitable Trust having their office at 2 Rehman Mansion, 44 Shahid Bhagatsing Road, Mumbai 400 039. The property consists of ground plus upper floor. A Notification No. LAQ/awkp/4 dated 24-12-1992 was issued by the Special Land Acquisition Officer under section 4 of the Act for acquiring 2000 sq. ft. of area on the first floor of the said building. The same was published in Maharashtra Government Gazette, at Konkan Division under Supplementary Part I, page Nos. 226 and 227 on 24-12-1992. It was also published in Marathi and English news papers viz. Dainik Samana and Free Press Journal dated 26-12-1992. Summary notice was also given by publication on the acquired property as also on the notice board of the Collector, Mumbai city dated 13-1-1993. Thereafter notification under section 6 of the Act was issued on 23-12-1993 which came to be published in Maharashtra Government Gazette and also in English and Marathi news papers dated 24-12-1993. Similarly notice under section 6 came to be published on the notice board of Collector, Mumbai city on 15-2-1994 and at the acquired property on the same day. As per original notification, the proposed acquisition was in respect of first floor area admeasuring 2000 sq. ft. (i. e. 185-80 sq. mtrs. ). However, pursuant to the letter of Controller of Rationing dated 9-12-1994, Public Works Department jointly measured the area of the subject property when it transpired that the total area including existing building is 4701-37 sq. ft. Accordingly amended notice under section 6 and amendment proposal was sent to the Additional Commissioner, Konkan Division on 19-8-1995. Thereafter no objection certificate from the land holders were sought and the land holders were personally contacted; when Shri Harshad S. Maniar valuer on behalf of the holder suggested to acquire the entire building under section 49 of the Land Acquisition Act. The matter was personally discussed with the acquiring body- Rationing Officer when they informed that it was not necessary to acquire the entire area. As mentioned earlier, after carrying out survey it was noticed that area on the ground floor is 1847-87 sq. ft. and on the first floor is 2853. 50 sq. ft. Since the proposed acquisition of 2000 sq. ft. could not be adjusted on either of the floors, therefore, the acquiring body and owners were informed that area admeasuring 2853-50 sq. ft. of first floor would be acquired on receipt of their consent. Later on amendment was effected to the notifications already issued under sections 4 and 6 and proposed acquisition was made in respect of area 2853-50 sq. ft. (i. e. 265-19 sq. mtrs.) i. e. entire first floor of the suit building. The Special Land Acquisition Officer after following necessary procedure of issuing notice under section 9 (1) and (2) and publishing the same as well as giving personal notices under section 9 (3) and (4) proceeded in the matter. The claimants appeared and claimed compensation at the rate of Rs. 3000/- per sq. ft. pursuant to their letter dated 29-8-1994. In support of their claim, the claimants relied on the valuation report prepared by their valuer Shri Harshad S. Maniyar. The valuation report inturn referred to three sale instances, out of which transaction in respect of C. S. No. 1784 had taken place by registered conveyance deed dated 20-5-1987. Essentially, valuation done by the claimants at the rate of Rs. 3,000/- per sq. ft. was on the basis of the said sale instance. Other two instances referred to in the valuation report were relied only to demonstrate the fair market value of the land from one end of Masjid Bunder to Byculla. On the other hand, the Special Land Acquisition Officer collected around eight sale transactions from the office of the Sub-Registrar. On analyzing the materials on record, the Special Land Acquisition Officer was of the view that none of the transactions relied by the claimants were comparable instances; and similarly the transactions collected from the office of the Sub-Registrar were also discarded. The Special Land Acquisition Officer was however of the view that it would be appropriate to value the suit property as per the market rate fixed by SPEED PROOF COMPUTER SYSTEM, which is approved by the Deputy Director of Town Planning and Valuer. Accordingly, the Special Land Acquisition Officer, taking into consideration the prevailing rate prescribed by the SPEED PROOF COMPUTER SYSTEM, suggested that rate at Rs. 3150/- per sq. ft. would be reasonable for the acquired property. This proposal however, did not meet the approval of the Commissioner, Konkan Division. The Government, however, fixed the value as per confidential letter No. ABD/1269/43/6/96 A-4 dated 8-2-1996 of the Revenue and Forest Department. In the circumstances, the Special Land Acquisition Officer while making the Award under section 11 of the Act on 15-2-1996 took the view that the rates of SPEED PROOF COMPUTER SYSTEM are for the built up area of new construction, whereas the present suit property is old load bearing one and mainly occupied by the residents nearby. Besides this the Special Land Acquisition Officer also noted that the acquired property is comparably bigger than the sale instance No. 3 referred to by the claimants in respect of Vardhaman Chambers having 1856 sq. ft. of land only. The said property was shown at the rate of Rs. 1892/- per sq. ft. as on 10-12-1992. The Special Land Acquisition Officer also noted that the said property was on the ground floor whereas the suit property was on the first floor. In the circumstances, the Special Land Acquisition Officer determined the market value of the suit property at the rate of Rs. 1800/- per sq. ft. Besides that the Special Land Acquisition Officer awarded solatium at the rate of 30% on the market value and 12% part compensation from 13-1-1993 to 15-2-1996 i. e. the date of Award. After the Award, notice under section 12 (2) of the Act was issued and possession of the property was eventually taken on 26-4-1996. On depositing the compensation amount as per the Award, the claimants accepted the same without prejudice to their right to claim enhanced compensation. The claimants thereafter made application for enhancement of compensation on account of which the present reference has been made by the Special Land Acquisition Officer under section 18 of the Act.

(3.) BEFORE this Court the claimants have examined only one witness Shri Harshad S. Maniar, who is a Government qualified registered valuer. The said witness has produced the valuation report prepared by him as well as the certified copy of the registered deed of conveyance in respect of instance No. 1 referred to in the valuation report i. e. C. S. No. 1784 of Mandvi division dated 20-5-1987. This witness has also produced the location plan of the said sale instance and the land under valuation. According to this witness the suit property is situated at the junction of four main roads viz. Ramchandra Bhatt Marg, Shivdas Champsi Marg, Dr. Noishri Road and Samantbai Nagji Marg, with all civil amenities. This witness has also given the description of the property- that construction of the ceiling is of teak wood plank resting on teakwood joists; it has a Mangalore tiled roof supported over teakwood trusses; the walls are load bearing brick masonry walls; the stair case is of teakwood; the handrails and the hallusters are of teakwood; the plinth is 2 above the ground; the walls are 21 thick; the first floor flooring is of marble mosaic tiles; the doors and windows are of teak wood. After giving this description, this witness states that he had valued the suit property at the rate of Rs. 3000/- per sq. ft. on the basis of sale instance of Survey No. 1784 of Mandvi Division which was sold for total consideration of Rs. 26 lacs on 29-5-1987 at the rate of Rs. 993/- per sq. ft. The witness has also clarified that he has referred to two other sale instances only to show the fair market value of one end of Masjid Bunder to Byculla. So far as the sale instance bearing C. S. No. 1784 of Mandvi Division, on the basis of which the claimants have based valuation of the suit property at the rate of Rs. 3000/- per sq. ft. is concerned, he has given the description of the said property and emphasized that it is located only 360 mtrs. away from the suit property. Moreover, that property is situated in a narrow lane of 20 and is a ground floor structure. In comparison, according to him, the suit property is situated at the junction of four major roads, having shopping potentials. He further states that while valuing the suit property he has kept in mind 15% rise per annum from the date of agreement of sale instance dated 20-5-1987 till the date of section 4 notification. Although this witness has not given the break up as to the basis of arriving at Rs. 3000/- per sq. ft. in his valuation report, during his evidence has stated that he has provided for 15% rise per annum on compound basis and the valuation would therefore be Rs. 3219-66 per sq. ft. During his cross-examination he has admitted that the suit building is about 30 to 40 years old. It may be noted that even the acquiring authority proceeded on the premise that suit building is around 50 years old. He has denied that sale instance relied upon is not a comparable instance. But, according to him, the sale instance was in close proximity of the suit property, hence comparable. In his cross-examination he has accepted that the valuation of the first floor property depends upon how the property is used. Besides, other relevant factor mentioned in the cross-examination is that, he had kept in mind weightage of 25% while determining the value of the property under acquisition, having regard to its special location. This case has however, come for the first time in the cross-examination. This witness has denied that the valuation of the suit property done by him is incorrect since he had relied only on one sale instance. On the other hand, no evidence has been adduced on behalf of acquiring body. Accordingly this Court will have to adjudicate the matter in the context of evidence that has come on record before this Court.