ASHOK GANGADHARRAO GODHAMGAONKARversusTHE STATE OF MAHARASHTRA THROUGH THE COLLECTOR DISTRICT NANDED AND ORS

2026:BHC-AUG:4394


                                                (1)                        FA-157-2024


                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                  FIRST APPEAL NO. 157 OF 2024

                         ASHOK S/O GANGADHARRAO GODHAMGAONKAR
                                                 VERSUS
                     THE STATE OF MAHARASHTRA THR, COLLECTOR AND ORS
                                                    ...
           Shri. Milind Patil h/f. Shri. P. G. Godhamgaonkar, Advocate for Appellant
           Shri. S. V. Hange, AGP for Respondent Nos.1 and 2
           Shri. M. D. Narwadkar, Advocate for Respondent No.3
                                                    …

                               CORAM                   : SHAILESH P. BRAHME, J.
                               RESERVED DATE           : 17.01.2026
                               PRONOUNCED DATE : 02.02.2026

           ORDER :-
           .           Taken up for final disposal with the consent of the parties.


           2.          Appellant is taking exception to judgment and award dated

           11.09.2023 passed in LAR No.13 of 1988 rejecting the reference. He is

           claiming enhancement of the compensation for constructed portion as well as

           compensation for the open space.


           3.          Appellant is the owner of land bearing no.2-10-232 (old), 2-12-64

           (new) situated at Vazirabad Taluka and District Nanded which is comprising of

           constructed portion of 72.83 sq.m. (783.65 sq.ft) and open space of 237.25

           sq.ft. It was situated at the heart of the city at Vazirabad Chowk. Respondent
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no.2 – corporation acquired the same for expansion of the Chowk. The

notification under Section 126 was issued on 18.07.1977 to the extent of

72.83 sq.m. (783.65 sq.ft). The notification under Section 6 was issued on

18.08.1977. The constructed portion was acquired by the respondent –

corporation and the Special Land Acquisition Officer offered rate of Rs.60/-

per sq.ft. when the appellant demanded Rs.350/- sq.ft. Appellant also

demanded Rs. 300/- per sq.ft. for the open space which was acquired but no

compensation was paid.


4.          Being aggrieved, LAR No.13 of 1988 was submitted by the

appellant. It was allowed and the compensation was enhanced to Rs.200/- per

sq.ft. for the acquired area vide judgment dated 31.07.1989. Being aggrieved,

the respondents preferred First Appeal No.201 of 1990 which was allowed by

the Division Bench of the High Court on 4 th February 2003 thereby remanding

the matter to the Reference Court as the acquiring body was not impleaded.


5.          After adding the respondent – corporation as a party respondent,

reference was again decided vide order dated 11.09.2023 by which the rate

was fixed at Rs.60/- per sq.ft. but reference was held to be beyond limitation

and it was dismissed. Being aggrieved, appellant preferred First Appeal

No.650 of 2004. The learned Single Judge allowed the First Appeal and
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directed the Reference Court to reconsider the issue of limitation vide

judgment dated 02.05.2014.


6.           After remand on the second occasion, the Reference Court

decided the matter on merits and held that it was within limitation. However,

it refused to enhance the rate of Rs.60/- per sq.ft. and the reference was

dismissed vide judgment and award dated 11.09.2023 which is impugned in

the present first appeal.


7.           Learned counsel Mr. Milind Patil submits that Reference Court

committed patent illegality in dismissing the reference because voluminous

documentary evidence and the oral evidence is placed on record to show that

rate for the constructed portion would be Rs. 350/- sq.ft.       It is further

submitted that there was no reason for the Reference Court to fix the rate at

Rs.60/- when on earlier occasion, vide judgment dated 31.07.1989, the

Reference Court had arrived at rate of Rs.200/- per sq.ft. It is further

submitted that the land acquired is situated at the heart of the city, having

commercial potential, it would fetch huge price. It is a developed area and

demanding location.


8.           Learned counsel would submit that sale deed at exhibit – 33, 34,

71 and 72 are not properly appreciated. The agreement at exhibit 35 and 36
                                      (4)                       FA-157-2024


would indicate the commercial utility of the premises and the claim of

Rs.350/- per sq.ft ought to have been accepted. It is submitted that evidence

of PW no.2 is wrongly discarded by the Reference Court. It is further

submitted that the approach of the respondents in not paying compensation

for open space admeasuring 237.25 sq.ft is against Article 300-A of the

Constitution of India. It is submitted that the sale deeds at exhibit 33 and 34

by which the appellant purchased the property are indicative of the fact that in

between construction portion and the road, there is an open space belonging

to the appellant which also subsumed in the acquisition for which the

respondents are obliged to pay the compensation.


9.          Per contra learned counsel Mr. M. D. Narwadkar appearing for

respondent no.3 would submit that this Court cannot go beyond notification

issued under Section 6 which is restricted up to acquisition of the constructed

portion. No claim for any open space can be entertained. Existence of the open

space is disputed. It is further submitted that the orders passed by the High

Court in the present matter previously and judgment and order dated

22.09.2003 would indicate that rate of Rs.60/- per sq.ft is adequate and

reasonable. It is further submitted that no evidence is produced on record to

show the entitlement of enhancement of the rate.
                                      (5)                        FA-157-2024


10.         I have considered rival submissions of the parties. The respondent

– corporation acquired constructed portion of 72.83 sq.m. (783.65 sq.ft.) for

which the appellant is claiming rate of Rs.350/- per sq.ft. The open space

abutting the constructed portion measuring 237.25 sq.ft. has not been

incorporated in the notification under Section 6 of the Act. It’s compensation

is denied. The Reference Court held that the appellant is not entitled to the

enhancement claimed and the rate of Rs.60/- per sq.ft. is confirmed by the

impugned judgment and award.


11.         Undisputedly, the property or the land under acquisition is

situated in a Vazirabad chowk. It has been acquired for expansion of the

Chowk by invoking the provisions of Section 126 of Maharashtra Regional and

Town Planning Act. The appellant adduced oral evidence of two witnesses and

produced on record sale deeds and agreements to show that the property is

situated at commercial place and would fetch good value. The lease

agreement at exhibit 35 would show that it was let out for Rs.1000/- per

month. The open space of 25x12 was let out to the pan stall for rent of Rs.15/-

per day i.e. Rs. 450/-per month. The agreement to that effect was produced at

exhibit 36. Considering the location of the land which is acquired, it can be

safely concluded that it is a prime place located at the heart of the city. The

appellant could have let out the open space. It is also possible for him to fetch
                                      (6)                        FA-157-2024


handsome amount from the hoardings or advertisements.


12.         The Reference Court discarded the evidence on record arbitrarily.

The reason given for discarding exhibit 35 cannot stand to the reason. The

sale deeds exhibit 71 dated 21.01.1989 and exhibit 72 dated 24.01.1983

would definitely indicate that the property under acquisition is situated in a

commercial place and it is salable. The material on record is indicative of the

fact that the rate fixed by the Reference Court at Rs.60/- per sq.ft is extremely

inadequate. The appellant is entitled to a higher rate.


13.         Appellant has relied on the judgment of State of Kerala vs. P. P.

Hassan Koya reported in 1968 AIR SC 1201. This judgment will not help the

appellant. Further reliance is placed on judgment of Trishala Jain & another

vs. State of Uttaranchal & another reported in 2011 AIR SC 2458. I have gone

through para nos. 56 to 59. Various judgments are inter alia relied by the

Supreme Court and arrived at following extracts :

      “63. Under the Act, as settled by various judgments of this
      Court, there are different methods of computation of
      compensation payable to the claimants, for example it can be
      based upon comparable sale instances, awards and judgments
      relating to the similar or comparable lands, method of averages,
      yearly yields with reference to the revenue earned by the land,
      etc. Whatever method of determining the compensation it applied
      by the court, its result should always be reasonable, just and fair
      as that is the purpose sought to be achieved under the scheme of
                                     (7)                        FA-157-2024


      the Act. For attaining that purpose, application of some guesswork
      may be necessary but this principle would have hardly any
      application in a case of no evidence. In other words, where the
      parties have not brought on record any evidence, then the court
      will not be in a position to award compensation merely on the
      basis of imagination, conjecture, etc.
      64. These precedents clearly demonstrate that the court may
      apply some guesswork before it could arrive at a final
      determination, which is in consonance with the statutory law as
      well as the principles stated in the judicial pronouncements. As
      already noticed, the guesswork has to be used for determination
      of compensation with greater element of caution and the
      principles os guesstimation will have no application to the case of
      “no evidence”. This principle is only intended to bridge the gap
      between the calculated compensation and the actual
      compensation that the claimants may be entitled to receive as per
      the facts of a given case to meet the ends of justice.
      65. It will be appropriate for us to state certain principles
      controlling the application of “guesstimate”:
      (a) Wherever the evidence produced by the parties is not
      sufficient to determine the compensation with exactitude, this
      principle can be resorted to.
      (b) Discretion of the court in applying guesswork to the facts of
      a given case is not unfettered but has to be reasonable and should
      have a connection to the date on record produced by the parties
      by way of evidence. Further, this entire exercise has to be within
      the limitations specified under Sections 23 and 24 of the Act and
      cannot be made in detriment thereto.”

14.         Further reliance is placed on the judgment of New Okhla

Industrial Development Authority vs. Harnand Singh (Deceased) through Lrs

reported in 2024 INSC 509. I have considered para nos. 31 to 34. Applying the
                                       (8)                        FA-157-2024


same principles, I have arrived at the price of Rs.200/- per sq.ft.


15.          The appellant is unable to prove the rate of Rs.350/- per sq.ft. for

the constructed portion. The rate of Rs.60/- per sq. fixed by the Reference

Court is extremely on lower side which needs enhancement. Considering the

material placed on record some guesswork in the present matter is inevitable.

The judgments of the Supreme Court referred above permit this Court to apply

the principles of guesstimate. I am of the considered view that the ends of

justice would be met in fixing the rate of Rs.175/- sq.ft. for the constructed

portion.


16.          The minute perusal of the sale deed exhibits 33 and 34 by which

the appellant purchased the land comprising of constructed portion with open

space would indicate that open space was also purchased along with

constructed portion. The maps are annexed to exhibits 33 and 34 which would

show that in between road and constructed portion, the open space is seen.

The sale deeds unequivocally disclose that northern side open space belonged

to the appellant. It is merged in the acquisition because the widening of the

road or the expansion of the square would not be possible unless the open

space is acquired first. The respondent – authorities have denied the

compensation for the open space which is utterly against constitutional right
                                      (9)                       FA-157-2024


of the appellant under Article 300-A of the Constitution of India.


17.         Merely because open space of 237.25 sq.ft. is not shown in the

notification under Section 126 or Section 6 of the Act does not mean that

there is no utilisation of the open space. The Respondent – authorities are the

record keepers and the acquisition process has been initiated at their behest.

They are bound to explain as to why the compensation for open space has not

been paid to the appellant. They cannot shirk the liability of paying

compensation when it is evident that the constructed portion cannot be

acquired unless open space is acquired. The appellant is entitled to the

compensation for the open space.


18.         Reliance is placed on the judgment of National Highways

Authority of India vs. Sub-Divisional Officer cum Land Acquisition Officer,

Yavatmal in Writ Petition No.2981 of 2021. In that case also, the claimant was

not paid compensation of land of 0.62 HR in Gut No.4 and only compensation

to the extent of 0.26 HR was paid. Ultimately, it was held that the appellant is

entitled to receive compensation. Both the pieces of land were reflected in the

joint measurement. It was held that the claimant was entitled to receive the

compensation for both pieces. In the present case also, I have come to

conclusion that the appellant is entitled to compensation for acquisition of the
                                       ( 10 )                     FA-157-2024


constructed portion as well as open space.


19.         The possession was taken on 08.01.1982. Already there are three

rounds of litigation. The appellant suffered orders of remand. Under such

circumstances, it would be time-consuming to direct the respondents to

undertake the proceedings for acquisition of the open space and to pay the

compensation. The said course it not practicable for the reason that even the

respondents might not have the record after lapse of 45 years. The concrete

evidence is lacking for fixing the rate. I again rely upon the principles laid

down by the Supreme Court for applying the principles of guesstimate for

fixing the rate for the open space. The open space might have been put to

commercial utility by the appellant. The area is developed one. Considering

overall situation, it would be appropriate to fix the rate at Rs.100/- per sq.ft.

for the open space.


20.         For the reasons stated above, I pass following order :

                                    ORDER

      a.    First Appeal is allowed partly.


      b.    Appellant is entitled to receive rate of rs.175/- per sq.ft. For
      72.83 sq.m. (783.65 sq.ft.) for constructed portion and Rs.100/-
      sq.ft. for the open space of 237.25 sq.ft.
                                       ( 11 )                   FA-157-2024


      c.    The appellant shall be entitled to receive solatium at the
      rate of 30% of the market value and additional component at the
      rate of 12% from the date of notification i.e. 18.07.1977 till the
      date of award i.e. 22.09.1986.


      d.    The appellant shall be entitled to the interest under Section
      28 and 34 of the Land Acquisition Act, 1894 as per full Bench
      judgment of State of Maharashtra Vs. Kailash Shiva Rangari
      [2016 AIR (Bom.)141].


      e.    The appellant shall pay the deficit court fees.


      f.    Record and Proceeding be sent back to the Reference Court.


      g.    Award be drawn accordingly.




                                                   ( SHAILESH P. BRAHME, J. )
PRW