JUDGMENT - F.I. REBELLO, J.:---By a Notification dated 25th May, 1967 published in the Government Gazette on 1st June, 1967 land totalling admeasuring 4,270.85 sq. mtrs. was notified as required for a public purpose. The land comprised as under :--- 1) C.S. No. 669 (part) 2) C.S. No. 8/669 3) C.S. No. 9/669 4) C.S. No. 669 (part). totally admeasuring 4,270.85 sq. mtrs. The Award was declared on 28th March, 1972. Possession was taken on 1st April, 1972. The Land Acquisition Officer fixed market value at the rate of Rs. 560/- per sq. mtr. Mr. Habib Mohammed Hashanbhoy, a person interested in C.S. Nos. 8/669, 9/669 and 669 (part) applied for a reference under section 18. Some others had also filed claims before the Land Acquisition Officer in respect of the very land where a reference was sought on the ground that they had interest in the land. As the Land Acquisition Officer was unable to decide the said issue, the Land Acquisition Officer was pleased to refer the matter to the Court under sections 18 and 30 of the Land Acquisition Act. In the course of the proceedings, there is an order dated 2nd April, 1993 whereby in so far as the subject matter of the reference under section 30 has been settled between the parties. Therefore, today what is in issue is only the application for enhancement as prayed for by the late Habib Mohammed Hashanbhoy by his application under section 18 of the Land Acquisition Act. In the course of the proceedings, the claimant No. 1 expired and his legal heirs have been brought on record. There is some settlement also inter se amongst the legal heirs and the claim has been continued by claimant No. 1(a) i.e. Latif Mohammed Hashanbhoy, hereinafter referred to as "Shri Latif". The claimants acquired land admeasuring 2740.58 sq. mtrs. 2. By an application dated 4th May, 1972 the original claimant prayed for enhancement of compensation from Rs. 538/- per sq. yds. to Rs. 690/- per sq.yds. Various other grounds have been taken to contend that the market value as fixed was not the real market value. Apart from that in ground (f) it has been contended that the claimant's land would have fetched higher market value than the land identified under C.S. No. 1/669. 538/- per sq. yds. to Rs. 690/- per sq.yds. Various other grounds have been taken to contend that the market value as fixed was not the real market value. Apart from that in ground (f) it has been contended that the claimant's land would have fetched higher market value than the land identified under C.S. No. 1/669. The contention was that the claimant's land was levelled and had access to the road while land bearing C.S. No. 1/669 was not levelled and had no access at all. 3. On behalf of the claimant, the claimant Shri Latif has been examined. Apart from him on behalf of the claimant, they have examined Mr. Jaydev Krishnaram Divecha, an Architect (Valuer). On behalf of the State/Acquiring Body Shri Prabhakar Vinayakrao Deshmukh, Dy. Director of Town Planning has been examined. The documentary evidence are two survey plans and the Letters of Administration in favour of Shri Latif as also the scrutiny report. This is the evidence before this Court for the purpose of considering the application for enhancement of compensation under section 18. 4. At the hearing of the reference on behalf of the claimant, his learned Counsel has restricted his claim to contend that as his land had greater potential for building construction than the land of the adjoining owner identified under C.S. No. 1/669 (Part), the Land Acquisition Officer had to fix higher market value than fixing the same market value for both the lands as he had done. Considering the advantageous that the claimant's land had over the adjoining land acquired by the same notification, the market value of the claimant's land ought to have been fixed at the rate of Rs. 683.20 per sq.mtrs. Though the reference was sought that the land should be valued at Rs. 690/- per sq.yds. the principal contentions are (1) that the adjoining land had no direct access, whereas the land owned by the claimant had access to Peddar Road: (2) the land of Khoja Orphanage Trust is a strip type of land whereas the claimant's land has a better shape: and (3) the land of the Khoja Orphanage Trust is sloppy whereas the land of the claimant is flat. Considering these aspects the evidence can now be appreciated. 5. Considering these aspects the evidence can now be appreciated. 5. Shri Latif, claimant's witness No. 1 had produced the Letters of Administration, which is marked at Exhibit No. C-1, as the original claimant expired on 16th December, 1986. He has deposed that he had seen the land under acquisition prior to June, 1967 as his father was connected with the Khoja Trust and it was in front of the place where he was residing. His father was a Managing Trustee of the said Trust. In his evidence he has deposed that the land under acquisition had a frontage on Peddar Road. He had seen the land acquired from Khoja Orphanage which is the part of their larger holding and which has been purchased from his late brother. This large holding had access from Altamount Road. The land of his late brother was on level of Peddar Road whereas Khoja Orphanage land was 18 ft. higher than the Peddar Road of the claimants plot which was acquired, more than half was at level with Peddar Road and remaining was little higher than the Peddar Road. He has expressed his inability to state how much higher the remaining part of the claimant's plot was from Peddar Road. He has visited the site acquired during the course of proceedings and previous to his deposition. On visit to the site, he found difference in level between the plot acquired from late Habibbhai and the plot acquired from Khoja Orphanage. In the cross examination, he has deposed that late Habibbhai had purchased the land under acquisition by Sale Deed dated 2nd April, 1957 at the rate of Rs. 20/- per sq.yds. His late brother had sold the land to Khoja Orphanage but he was not aware the rate at which the land was sold nor the area. On 2nd April, 1957 also he has sold land to Maharaja of Idar. He was not aware of area nor the rate of the land sold. Except that he had sold two plots. He was unable to say whether plots were sold to Maharaja of Idar at Rs. 80/- per sq.yds. or whether the land was sold to Khoja Orphanage at Rs. 22/- per sq.yds. Nor could he depose as to what was the area left after selling all the three plots and whether it was 11,191 sq.yds. He was unable to say whether plots were sold to Maharaja of Idar at Rs. 80/- per sq.yds. or whether the land was sold to Khoja Orphanage at Rs. 22/- per sq.yds. Nor could he depose as to what was the area left after selling all the three plots and whether it was 11,191 sq.yds. He was unable to say as to what was the frontage of the claimant's plot from Peddar Road side and whether it was 94 ft. nor whether the maximum length of the land under acquisition was 208 ft. and the maximum width was 318 ft. He agreed that the land under acquisition was part of hillock as before acquisition the portion was already levelled and other portion required a little levelling. He has reiterated that in respect of the land under acquisition part was levelled by his late brother and remaining part was not levelled. On the land under acquisition his late brother had constructed a private road by the side of the land under acquisition and not on the land under acquisition. He has deposed to various charges created on the land and the amount for which the charges were created. He has agreed that the land under acquisition was under a negative covenant between the predecessor in title of Navroji Gamadia and that of late Habibbhai. He has also deposed that the similar was the position in respect of the Khoja Orphanage land. 6. Jaydev Krishnaram Divecha is the Architect examined on behalf of the claimant. He has passed section A and B Examinations of the Institution and practising as an Architect and valuer since 1969 and he has given evidence in Court as an expert valuer in matters relating to land and properties. He has also deposed as an expert in this Court in land acquisition references. He confirmed the area of the land and various survey numbers. He has prepared the plan Exhibit No. C-3 based on the joint survey plan of Malabar Hill Division dated 28th November, 1969. He has deposed that Exhibit No. C-3 is similar to Exhibit No. C-2 which is a tracing done by him. He has demarcated the Khoja Orphanage Land under alphabets A, B, C and D. He has deposed that the value of the claimant's land as on 1st June, 1967 would be Rs. 683.20 ps. per sq.mtr. He has deposed that Exhibit No. C-3 is similar to Exhibit No. C-2 which is a tracing done by him. He has demarcated the Khoja Orphanage Land under alphabets A, B, C and D. He has deposed that the value of the claimant's land as on 1st June, 1967 would be Rs. 683.20 ps. per sq.mtr. and if the land acquired from Khoja Orphanage is valued at Rs. 560/- per sq.mtr. the land of the present claimant being superior by at least 2 per cent and therefore valuation would be Rs. 683.20 per sq.mtr. He has arrived at the figure of 22 per cent because (1) it has frontage on Peddar Road and therefore has direct access from Peddar Road whereas Khoja Orphanage land has no direct access. The Khoja Orphanage land under acquisition has to have access from remaining portion of the Khoja Orphanage land and for this he has given 15 per cent superiority: (2) The shape of the claimant's land is much better than the shape of the land acquired of the Khoja Orphanage which is a strip admeasuring 300' long x 55' width. On this count he has given a superiority of 5 per cent of the claimant's land and (3) the Khoja Orphanage land was sloping from east to west whereas the claimant's land was more or less levelled. On account of which factor he has given 2 per cent superiority to claimant's land and thus arrived at the figure of 22 per cent and correspondingly market value at Rs. 683.20 per sq.mtr. In cross, he has deposed that land acquired from Khoja Orphanage was also in a prominent location and had access from Altamount Road. The surrounding areas around Khoja Orphanage land were well developed as they had residential premises, Banks and Schools. Carmichael Road was far to the north of the Orphanage and it meets Altamount Road far to the north but the access was not the direct access. The Khoja Orphanage land overlooks Peddar Road because of natural elevation. Prior to 7th January, 1967 the F.S.I. for the land under acquisition was 2 but has been reduced to 1.33 subsequently. He has disagreed with the suggestion that the value of the property gets reduced if it is subject to equitable mortgage. The Khoja Orphanage land overlooks Peddar Road because of natural elevation. Prior to 7th January, 1967 the F.S.I. for the land under acquisition was 2 but has been reduced to 1.33 subsequently. He has disagreed with the suggestion that the value of the property gets reduced if it is subject to equitable mortgage. He has agreed with the suggestion that the value of the property would be reduced if the height of the intended building to be constructed is subject to a negative covenant. 7. On behalf of the State Government/Acquiring Body Shri Prabhakar Vinayakrao Deshmukh has been examined. He is Dy. Director of Town Planning in the Town Planning and Valuation Department of the State of Maharashtra. He is Graduate in Architecture and Post-Graduate in City Planning. He has once deposed as an expert in the land acquisition reference. He visited the land under acquisition on 16th August, 1999 and has read the evidence of the claimant's valuer Shri Jaydev Krishnaram Divecha and has prepared his report. He has deposed that the Khoja Orphanage land has access from Altamount Road. The shape of the land according to him is immaterial as entire land has been acquired together for the same purpose. He states that both the lands are at the foot hills of Cumballa Hill and therefore the claim of the claimant that their land is flat whereas Orphanage land is sloppy is not correct. According to him the Land Acquisition Officer has arrived at the correct market value which is fair and reasonable and requires no variation. He has submitted his report which is at Exhibit R-1. In his opinion if there are charges on the land like mortgage, the market value will be lesser than the land on which there is no charge. In cross-examination he has agreed that if the acquired part of C.S. No. 1/669 was sold then access to Altamount Road would have to be provided through the unacquired land of Khoja Orphanage Trust and that there is no question of providing access from claimant's land as it has frontage from the Peddar Road. He has disagreed with the suggestion that the land of the claimant is superior in so far as the access to the road is concerned as in his opinion both the lands are fronted by a road. He has disagreed with the suggestion that the land of the claimant is superior in so far as the access to the road is concerned as in his opinion both the lands are fronted by a road. The claimant's land as also the Orphanage land were situated in residential Zone and that for the purpose of residence the shape of the claimant's land is superior to the Khoja Orphanage land. When he visited site on 16th August, 1999 development had taken place on the land and the land was levelled. His attention was pointed out to Exhibit R-1 at page 4, in answer he has stated that the statement was made as the unacquired land of the Khoja Orphanage is at higher level and the acquired land of the Khoja Orphanage is at the level of the land of the claimant and that he has deposed based on the land as on the date of his inspection. He is unable to say as to what was the position as the time of issuing Notification under section 4. He does not agree with the suggestion that the valuation done by Mr. Divecha in fixing the market value of the claimant's land at 22% over the land of Khoja Orphanage Trust is correct. He has disagreed with the suggestion that the encumbered land will fetch a value more than an unencumbered land. 8. From the evidence which has been referred to earlier can it be said that the claimants have made a case for enhancement of the market value. As pointed out earlier the claim for enhancement is solely based vide comparison of the land of the claimant vis-a-vis a land acquired from the Orphanage. The contention is that for both the lands the market value fixed is a same namely Rs. 560/- per sq.mtr. The Land Acquisition Officer, considering that the claimants land had direct access to the road, had a better shape and flat compared to the Orphanage land ought to have valued the claimants' land at 22% more than the Orphanage Land as deposed to by their valuer. 9. I will first deal with the contention whether the claimants have been able to establish that their land was flat in comparison to the land of the Orphanage. In so far as evidence on this count is concerned in my opinion the evidence of both the valuers namely Mr. 9. I will first deal with the contention whether the claimants have been able to establish that their land was flat in comparison to the land of the Orphanage. In so far as evidence on this count is concerned in my opinion the evidence of both the valuers namely Mr. Jaydev Krishnaram Divecha and Mr. Prabhakar Vinayakrao Deshmukh cannot be considered as they had not visited the land at the time when the Notification was issued under section 4 but much later after development had commenced on the land. That leads only the evidence of the legal representatives of the original claimant Mr. Latif Mohammed Hashambhai. In his examination-in-chief he has deposed that more than half of the claimant's land was levelled with the Peddar Road and the remaining was little higher than the Peddar Road. This levelling had been done by his brother. He has also deposed that the Khoja Orphanage land was 18 ft. higher than the Peddar Road. He is not in a position to say the height of the unlevelled land from the Peddar Road. The evidence therefore is not that clear as to what was the difference between the land which was not levelled of the acquired plot of the claimant from the level of the acquired plot of the Orphanage. The valuer has fixed 2 per cent superiority for the claimant's plot over the land of the Orphanage. Considering the fact that some amount must have been spent on levelling the part of the land which is not disputed in cross-examination of the witness Mr. Latif, I would award to the claimant one per cent instead of the two per cent as was sought to be conferred by the valuer as only half the land was levelled. 10. We then come to the next contention namely frontage. It is an admitted position that the claimant's land has frontage from the Peddar Road. It is also an admitted position that the entire plot of the Orphanage has frontage from the Altamount Road. However, in so far as the acquired plot of the Orphanage land is concerned there was no frontage. Access from acquired plot to Altamount Road would have to be provided through the remaining land of the Orphanage. The valuer on behalf of the claimant on this Court has considered that superiority should be fixed at 15 per cent. However, in so far as the acquired plot of the Orphanage land is concerned there was no frontage. Access from acquired plot to Altamount Road would have to be provided through the remaining land of the Orphanage. The valuer on behalf of the claimant on this Court has considered that superiority should be fixed at 15 per cent. The valuer examined on behalf of the State Government/Acquiring Authority on the other hand has contended that the mere fact that the claimant's land was fronted by the Peddar Road it could not be said to be superior as both the plots were fronted by the road. The question is whether the Court can accept the 15 per cent superiority as contended by the witness examined on behalf of the claimant. The valuer has not given any criteria based on which the market value of land having frontage have to be fixed and how frontage is taken into consideration for fixing the market value. Therefore, in my opinion a mere statement that 15 per cent is the superiority cannot be accepted as a matter of course. Does that mean that the entire claim of the claimant has to be rejected. The Court would have to apply the test of a willing buyer wishing to purchase the land. Admittedly the land of the claimant did have direct access to the Peddar Road. The land of the Orphanage which is acquired if sold as a plot by itself would have to be provided access through the remaining plot of the Orphanage land. In other words additional land of the Orphanage would have to be surrendered for the purpose of using the acquired plot for a residential purpose. Any willing buyer therefore, if these two plots were considered by themselves would not definitely offer the same price for the claimant's plot and the plot from the Khoja Orphanage. A willing buyer would definitely offer a lesser amount for the plot of the Khoja Orphanage Trust than that of the claimant's land. Considering those factors to my mind it would be fair if I fix superiority at about 5 per cent in favour of the claimant's land over the land of the Khoja Orphanage which has been acquired. Considering that the Khoja Orphanage would have to loose additional land for providing access to the Altamount Road from the acquired plot of their land. 11. Considering that the Khoja Orphanage would have to loose additional land for providing access to the Altamount Road from the acquired plot of their land. 11. That leads us only with the last question of superiority namely the shape of the plot. It is admitted by the valuer Shri Prabhakar Deshmukh that the plot of the claimant is superior to that of Orphanage plot. For this purpose the superiority fixed by the valuer is 5 per cent over the Khoja land. Again no basis has been given as to how the valuer has arrived at 5 per cent superiority. However, considering Exhibits C-2 and C-3 wherein the location of both the plots are easily identified and as both the lands can be used for residential purpose, the claimant's land would have greater residential potential, over that of the land of the Orphanage. Shri Deshmukh has admitted this position also in his evidence. Again considering no basis had been given for fixing 5% superiority. It will therefore not be possible for the Court to outright grant the claim on that count. A willing buyer would definitely consider the said aspect while considering the purchase price. Considering that I fix superiority at two per cent over the land of the Orphanage. Considering all heads I fix superiority at eight per cent over the Orphanage land. If eight percent is considered then the claimant's land's the market value will have to be fixed at Rs. 604.80 per sq.mtr. Apart from the market value claimant would be entitled to 30 per cent solatium on the enhanced market value. 12. On behalf of the State it was contended by the learned Counsel that original claimant No. 2 has not applied for enhancement and therefore in so far as his share is concerned, enhancement should not be paid. Reference under section 30 was made to this Court as Land Acquisition Officer could not decide the dispute between the claimant No. 1 and claimant No. 2 who claimed based on a negative covenant. When the matter was before this Court legal representatives of original claimant and claimant No. 2 have filed Consent Terms. The Consent Terms express that the claimant No. 1 has not accepted the rights of claimant No. 2 under the covenant. However, by way of compromise some monies have been paid to claimant No. 2. When the matter was before this Court legal representatives of original claimant and claimant No. 2 have filed Consent Terms. The Consent Terms express that the claimant No. 1 has not accepted the rights of claimant No. 2 under the covenant. However, by way of compromise some monies have been paid to claimant No. 2. There is a clause in the Consent Terms that some additional amount be paid, depending on the outcome of proceedings before this Court. In view of the consent terms clause 5, the claimant No. 2 who had filed a suit against original claimant for the negative covenant had agreed to withdraw the suit. In terms of clause 4 in the event any additional compensation was payable it was to be taken by legal representatives of claimant No. 1. It is in these circumstances that reference under section 30 was disposed of. Today what is before the Court is an application for enhancement of compensation by original claimant No. 1 now represented by his legal representatives. There is no dispute between the legal representatives of claimant No. 1 and claimant No. 2 in so far as the present acquisition is concerned. Claimant No. 2 has also not adduced any evidence before this Court. Question therefore of apportioning compensation between claimant No. 1 and claimant No. 2 does not arise. Once the suit filed by the claimant No. 2 against claimant No. 3 is withdrawn, his claim will only be by virtue of the Consent Terms. The compensation to be awarded will only go to legal representative i.e. claimant No. 1(a) only. The fact that there is consent terms between the claimant No. 1(a) and 1(b) on the one hand and claimant No. 2 on the other hand is independent of the determination by this Court and has nothing to do with apportioning of compensation. 13. The applicant will also be entitled to interest under section 28 at the rate of 9 per cent on the enhanced value for the period of one year from the date of possession and thereafter at 15 per cent till payment. In so far as the interest on solatium is concerned the matter has been referred by the Apex Court to a larger Bench. I do not propose therefore at this stage to pass any order on that point. In so far as the interest on solatium is concerned the matter has been referred by the Apex Court to a larger Bench. I do not propose therefore at this stage to pass any order on that point. The claimant would be entitled to move this Court in so far as the interest on solatium is concerned after the reference is answered. Hence the following award. AWARD Rs. (A) Market value awarded by the Court @ Rs. 604.80 per sq.mtr. (2740.58 x 604.80). --- 16,57,502.78 (B) Market value as per S.L.A.O's Award. --- 15,34,724.80 (C) Additional Market Value (A-B) 01,22,777.98 (D) Interest on (C) above i.e. on Rs. 1,22,777.98 @ 9% per annum from 1/4/1972 to 31/3/1973. 11,050.01 (E) Interest on (C) above @ 15% per annum from 1/4/1973 to 23/9/1999. 04,87,795.00 (F) Solatium @ 30% on market value (A) of Rs. 16,57,502.78 04,97,250.83 (G) Solatium awarded by S.L.A.O. 02,30,208.72 (H) Additional Solatium (F-G) 02,67,042.11 (I) Total amount payable : (C) Additional market value 01,22,777.98 + (D) Interest for 1st year @ 9% per annum --- 11,050.01 + (E) Interest thereafter @ 15% per annum. --- 04,87,795.00 + (F) Additional Solatium --- 02,67,042.11 ---------------- 08,88,665.10 =========== Further interest is payable on Rs. 1,22,777.98 @ 15 per cent per annum from 24th September, 1999 till date of payment. 14. Land Acquisition Reference is disposed of accordingly. The amount to be paid within 3 months from today. Each party to bear their own costs. Order accordingly.