[CASE NUMBER]+4 .odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY: NAGPUR BENCH: NAGPUR FIRST APPEAL NO.762/2007 APPELLANT: [ENTITY]. VERSUS RESPONDENTS: 1] [ENTITY] s/o Laxman Badkal,Aged-about 65 years, R/o [ENTITY], Tq.Maregaon, District Yavatmal. 2] The [ENTITY],Through the Collector, Yavatmal. 3] The [ENTITY]. 4] [ENTITY] [deleted by counsel] Mr. [ENTITY] Advocate for appellant Mrs [ENTITY], Advocate for respondent no.1 Mr. [ENTITY], A G P for respondent no.2 & 3 WITH FIRST APPEAL NO.860/2007 APPELLANT: [ENTITY] (For [ENTITY], Nagpur) At Pusad, Tq. Pusad, District Yavatmal. VERSUS RESPONDENTS: 1] [ENTITY] s/o Laxman Badkal Aged-about 55 years, R/o Karanwadi, Tq.Maregaon, District Yavatmal. 2] The [ENTITY], Through the Collector, Yavatmal. 3] The [ENTITY] Downloaded on - 09/06/2013 19:19:39 [CASE NUMBER]+4 .odt 2 No.1, Yavatmal. 4] [ENTITY]. Mr. [ENTITY] Advocate for appellant Mrs [ENTITY], Advocate for respondent no.1 Mr. [ENTITY], A G P for respondent no.2 to 4 WITH FIRST APPEAL NO.1486/2008 APPELLANT: [ENTITY]. VERSUS RESPONDENTS: 1] [ENTITY] s/o [ENTITY], Aged-about 33 years, R/o [ENTITY], Tq.Maregaon, District Yavatmal. 2] [ENTITY] w/o [ENTITY], Aged about 60 years, R/o [ENTITY], Tq.Maregaon, District Yavatmal. 3] The [ENTITY], Through the Collector, Yavatmal. 4] The [ENTITY]. 5] [ENTITY]. Mr. [ENTITY] Advocate for appellant Mrs [ENTITY], Advocate for respondent no.1 Mr. [ENTITY], A G P for respondent no.3 to 5 WITH CROSS OBJECTION NO. 16/2011 [IN [CASE NUMBER]] CROSS OBJECTORS: 1] [ENTITY] s/o [ENTITY], Aged-about 45 years, R/o Downloaded on - 09/06/2013 19:19:39 [CASE NUMBER]+4 .odt 3 [ENTITY], Tq.Maregaon, District Yavatmal. 2] [ENTITY] w/o [ENTITY], Aged about 70 years, R/o [ENTITY], Tq.Maregaon, District Yavatmal. VERSUS RESPONDENTS: 1] [ENTITY], through its Executive Engineer Minor Irrigation Division, Pusad. 2] The [ENTITY],Through the Collector, Yavatmal. 3] The [ENTITY]. 4] Executive Engineer Medium Project Division,Yavatmal. Mrs [ENTITY], Advocate for cross objectors Mr. [ENTITY] advocate for respondent no.1 Mr. [ENTITY], A G P for respondent no.2 to 4. WITH FIRST [CASE NUMBER] APPELLANT: [ENTITY] (For [ENTITY], Nagpur) At Pusad, Tq. Pusad, District Yavatmal. VERSUS RESPONDENTS: 1] [ENTITY] S/o [ENTITY], Aged about 33 years, R/o [ENTITY], Tq. Maregaon, District Yavatmal. 2] The [ENTITY], Through the Collector, Yavatmal. 3] The [ENTITY]. 4] [ENTITY]. Mr. [ENTITY] Advocate for appellant Mrs [ENTITY], Advocate for respondent no.1 Downloaded on - 09/06/2013 19:19:39 [CASE NUMBER]+4 .odt 4 Mr. [ENTITY], A G P for respondent no.2 to 4 WITH FIRST APPEAL NO.165/2009 APPELLANT [ENTITY], (For [ENTITY], Nagpur) At Pusad, Taluka Pusad, District Yavatmal. VERSUS RESPONDENTS: 1] [ENTITY] S/o [ENTITY], Aged 40 years, Occupation Agriculturist, R/o [ENTITY], Tal-Maregaon, District Yavatmal. 2] The [ENTITY], Through the Collector, Yavatmal. 3] The Special Land Acquisition Officer,Minor Irrigation Works No.1, Yavatmal. 4] Executive Engineer Medium Project Division Irrigation Department Yavatmal. Mr. [ENTITY] Advocate for appellant Mrs [ENTITY], Advocate for respondent no.1 Mr. [ENTITY], A G P for respondent no.2 to 4 WITH CROSS OBJECTION NO. 22/1012 [ IN [CASE NUMBER]] CROSS OBJECTOR: [ENTITY] S/o [ENTITY], Aged 40 years, Occupation Agriculturist, R/o [ENTITY], Tal-Maregaon, District Yavatmal. VERSUS RESPONDENTS: 1] [ENTITY], (For [ENTITY], Nagpur) At Pusad, Taluka Pusad, District Yavatmal. Downloaded on - 09/06/2013 19:19:39 [CASE NUMBER]+4 .odt 5 2] The [ENTITY], Through the Collector, Yavatmal. 3] The [ENTITY]. 4] Executive Engineer Medium Project, Yavatmal. Mrs. [ENTITY], advocate for respondent/ cross-objector Mr. [ENTITY] advocate for respondent no.1 Mr. [ENTITY] [ENTITY], A G P for respondent 2 to 4 CORAM: [ENTITY], J. DATE: 23.10.2012 [ENTITY]:
These appeals and cross appeals are arising from the judgment and award passed in between 28.9.2006 to 20.10.2006 by the Reference Courts at Kelapur - Pandharkawada, district :
Yavatmal. The particulars of the survey numbers, land acquired, compensation granted by S.L.A.O. and by Reference Court are reproduced in the following chart:
Sr. No. First Appeal No Survey Total area Area acquired Name of owner No./Gat No. (H.R.) (H.R.) 1 762/07 31 0.88 0.88 [ENTITY]( Respdt) 2 860/07 30 4.02 4.02 [ENTITY]. (Respdt) 3 1486/08 320 1.72 1.72 [ENTITY] cross obj. 16/11 317 2.58 2.58 (Respdt) 4 1487/08 18 1.62 1.62 [ENTITY] (Respdt) 5 165/09 301 2.23 2.23 [ENTITY] Cross-Obj. 22/12 (Respdt) Compensation awarded by LAC No. Date of Decision Compen-sation by S.L.A.O. Reference court [CASE NUMBER]+4 .odt Rs.27,000/- P.H. 135/04 [ Old 71/04 ] 29/9/06 Rs.85,000 P.H. Rs.1,500/- P.H. for P.K. Rs.27,000/- P.H. 141/04 28/9/06 Rs.85,000/- P.H. Rs.1,500/- P. H. for P.K. [ Old 77/04 ] Rs.27,000/- P.H. 130/04 20/10/06 Rs.88,000/- P.H. Rs.1,500/- P. H. for P.K. [ Old 66/04 ] Rs.32,000/- P.H. 136/04 [Old 72/04] 19/10/06 Rs.85,000/- P.H. Rs.1,500/- P.H. for P.K. Rs.32,000/- P.H. 28/03 [Old 23/03] 19/10/06 Rs.85,000/- P.H. Rs. 1,500/- P.H. for P.K. 2] Mr. [ENTITY], learned counsel appearing for the appellant contended that there being no evidence produced on record, the learned Reference Court ought not to have enhanced the compensation from Rs.27,000/- per hectare granted by the S.L.A.O. to Rs.85,000/- per hectare. According to him, the learned Reference Court adopted erroneous approach while entertaining these references.
3] Learned A G P, appearing for the State supported the contention advanced by Mr. [ENTITY].
4] Mrs. [ENTITY], appearing for the respondents / cross- objectors, contended that whatever the compensation awarded by the learned Reference Court is very much on the lower side. According to her, by producing on record overwhelming evidence, the land owners satisfactorily discharged the burden which lay upon them. In that view of the matter, no interference with the judgment and award impugned is warranted, she urged.
5] Point that arises for my consideration is :
Whether the compensation awarded by the [CASE NUMBER]+4 .odt Reference Court is just and fair?
6] Sale instance i.e. exhibit 41 relied upon by the land owners relates to the land of the same village i.e. Navargaon it being just 2 years prior to the date of notification, learned Reference Court was justified in fixing the market value after considering the same. However, from the observations made in paragraph 13 of the judgment and award it appears that the learned Reference Court felt hitch in relying upon the [SECTION] in view of the provisions of [SECTION] of the [ACT].
However, in later part of the judgment, the learned Reference Court observed that there was no challenge to the genuineness to the sale transaction and therefore, he proceeded to draw presumption about its genuineness and then considered it as a cogent evidence. In fact, after the decision of the Apex Court in Cement Corporation of India vs Puriya reported in (2004) 8 SCC 270, this issue remains no longer res-intigra. The Division Bench of this Court in case of MIDC vs Shaikh Khatinabi Abdul Gafar Shaikh and others, reported in 2008(2) Bom.C.R. 34 relying upon the decision in Cement Corporation's Case supra observed thus:
"It is not in dispute that Shri [ENTITY]'s land was purchased by Shri [ENTITY] and that copy of [SECTION] in respect of the sale is placed on record at Exh
32. The learned Advocate for the appellant [CASE NUMBER]+4 .odt submitted that for relying on the sale instances the party ought to have been examined. Such a view undoubtedly held field even after insertion of [SECTION] of the [ACT]. In (Special Deputy Collector vs Kurra Sambasiva Rao), reported at 1997 DGLS 725:A.I.R.1997 S.C.2625 the Apex Court held that the sale instance can be proved only by examining the vendor or vendee. However, subsequently, in (State of Haryana vs Ram Singh) reported at 2001 DGLS 895:A.I.R.2001 S.C.2532 the Apex Court held that the registered documents can be seen even without examining the parties. In (Cement corporation of India vs Puriya) reported at 2004 DGLS 713:
[CASE NUMBER] all these authorities, were considered and it was held that certified copy of document registered under the [ACT], including copy given under [SECTION] of the Act, may be accepted as evidence of the transaction recorded. In view of this objection of non-examination of the vendor or vendee cannot be sustained"
7] In that view of the matter, the evidence in the nature of [CASE NUMBER]+4 .odt the certified copy of the [SECTION] is very much admissible even without examining vendee and vendor. This transaction shows that for the area of 1.21 H.R. value fetched was Rs.74,300/- P.H. and this happened 2 years earlier. If 10% increase per year is added, the value would be more than Rs.90,000/- P.H. 8] Learned counsel for the appellant pointed out admission given by land owner A.W. 1 [ENTITY] [[CASE NUMBER]] to the effect that 3 to 4 years prior to application of notification under [SECTION] there was rumour that the Bembla Project was going to be implemented and for that lands would be acquired. This does not mean that whatever the sale transactions were effected were not bonafide or deliberately the price was inflated. To a specific suggestion A.W.1 [ENTITY] denied that transaction Exhibit 25 is a bogus and was prepared with an eye on the proposed acquisition. It is pertinent to note that the appellant did not undertake any exercise to point out some more sale instances, at least to raise a doubt that they were deliberately made to claim higher amount of compensation. In absence of such evidence the sale instance Exh.41, which prima facie, appears genuine, cannot be discarded.
9] Mrs. [ENTITY], learned counsel appearing for the respondents/cross-objectors relied upon the sale transaction at exhibit 45 [in [CASE NUMBER]] to claim enhanced amount of compensation than whatsoever has been awarded by the learned [CASE NUMBER]+4 .odt Reference Court. This transaction is dated 24.12.1990 which was made in pursuance to the agreement of sale. Frankly speaking no importance can be attached to the agreement of sale exhibit 46 which was not registered. Moreover, there is no evidence to prove its genuineness. Thus what appears is that on 24.12.1990, the land in the village, which is adjoining to village Navarwgaon fetched value of Rs.1,10,000/- i.e. about Rs.55,000/- per acre. Having regard to date of notification issued under [SECTION] i.e. dated 6.2.1997, this sale instance does not appear to be proximate from time angle.
10] In that light of the matter, there appears no scope for interference with the judgment and award impugned. 11] Accordingly, the appeals as also the cross-objections are dismissed. Parties are left to bear their own costs.
JUDGE SMP