1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD First Appeal No.228 of 1993 Yamunabai w/o Dattarao (died) through legal representatives: 1. Ramesh son of Dattatraya Wahiwal age major,occupation agriculture Resident of Satona, now at Sailu Taluka Pathri, District Parbhani. 2. Vishwambhar s/o Dattatraya Wahiwal age 36 years, occupation Agril. Resident of Satona, Taluka Pathri, District Parbhani. 3. Nandkishor s/o Dattatraya Wahiwal aged 22 years, occupation and Appellants resident of as above. original Petnrs. versus 1. The State of Maharashtra, through the Collector, Parbhani. 2. The Special Land Acquisition Officer, Jayakwadi Project, Respondents Parbhani. Ori.Resps. 2 Shri Pravin Waghmare, Advocate, holding for Smt. Asha Rasal, Advocate, for the Appellants-claimants Shri K.M.Suryawanshi, A.G.P. for Respondent-State. ------ Coram: P.R.Borkar J. Date : July 14, 2009. Oral Judgment 01. This first appeal is by original claimants being aggrieved by judgment and award passed by learned Civil Judge, Senior Division, Parbhani in Land Acquisition Reference No.214 of 1982 decided on 28.7.1992, whereby learned Judge refused to award higher compensation, but awarded 30 per cent solatium and additional compensation at 12 per cent on the amount granted by the Special Land Acquisition Officer ("SLAO" for short) from the date of issuance of notification under Section 4 of the Land Acquisition Act. till the date of award and future interest. 02. It is no more disputed that 39 R. land 3 out of survey No.19 admeasuriang 2 acres 22 gunthas situated at Parbhani was acquired by the State Government for construction of main canal on Jayakwadi Project. Appellants are legal heirs of original claimant Yamunabai and are owners of the land. Notification under Section 4 of the Land Acquisition Act, 1894 was issued on 7.4.1979. Award was passed by SLAO on 25.2.1981. Compensation of Rs.5,438.38 ps. along with solatium at the rate of 15 per cent i.e 822.65 ps. was awarded. Present appellants have claimed compensation at Rs.15,000/= per acre. Therefore, they have filed reference under section 18 of the Land Acquisition Act. The same was number as L.A.R. No.214 of 1982. The court directed the payment of solatium at the rate of 30 per cent and component under Section 23(1A) of the Land Acquisition Act and interest on additional amount. It is this order which is challenged in present first appeal. 03. The point which arises for consideration is, whether the compensation awarded to appellant 4 is legal and proper and as per market price prevailing at the time of issuance of notification under Section 4 of the Land Acquisition Act. 04. Heard Shri Pravin Waghmare learned Advocate, holding for Smt. Rasal, learned advocate for the appellants and Shri K.M. Suryawanshi, learned AGP for Respondent-State. In this case, appellant led evidence and deposed that there were comparable instances. Three sale deeds are produced at Exhibits 37,38 and 39. It is vehemently submitted before me that the same should have been accepted to calculate market price of the acquired lands. It is further stated that copies of judgments in two L.A.Rs. decided by Civil Judge, Senior Division, Parbhani are also produced on record to show that higher compensation was awarded to other lands. 05. So far as three sale deeds relied upon by claimants are concerned, at Exhibit 37 there is a sale instance showing that one Pushpabai had sold a residential plot bearing No. 5 23 and admeasuring 60` x 50` to one Kamlakar Deshpande on 28.6.1978. The plot was from survey No.22 within municipal limits of Parbhani Municipal Council. It was sold for Rs.5,000/=. At Exh.38, there is a sale deed whereby same Pushpabai Phutane had purchased residential plot from one Sakharam Venkatrao Deshmukh on 13.4.1073 for Rs.1000/=. At that time also, it was within municipal limits of Parbhani, as can be seen from description of the plot. So, these two sale instances show that so far as residential plots within municipal area are concerned, plot admeasuring 60` x 50' which was worth Rs.1000/= in 1973 was worth Rs.5,000/= in 1978. 06. Third sale deed at Exhibit 39 is dated 25.7.1983 under which one Krishnabai Deshmukh sold plot No.4 out of survey No. 22/3 to one Surekha Desai for Rs.9,000/=. Plot was admeasuring 16x14 mtrs. and situated within municipal limits. So, it was also a case of residential plot. 6 07. Learned Civil Judge has observed that in this case Notification under Section 4 was issued on 7.4.1979 and the sale deeds are of residential plots situated within municipal limits and those cannot be said to be properties comparable with the acquired land. It is also observed that the plots of which sale deeds are produced on record, were subjected to betterment charges and municipal taxes. That is not the case with acquired land, as the acquired land is still agricultural land. it has further been observed in paragraph 17 by the trial court that so far as acquired land is concerned, though it is stated by claimants that the said property is near residential area of Vidya Nagar, Saraswati Nagar, Nath Nagar and near Jaleshwar Mahadeo temple, their exists a road and a canal between residential localities and the acquired land. In the cross examination, the claimant has specifically admitted that beyond the canal, there were no residential houses as on the date of deposition. As a matter of fact, there was no more development in the area beyond 7 the canal. It was admitted that the acquired land was not converted into Non Agricultural land, because nobody was interested in constructing houses in the area beyond the canal. So, this admission shows that at the time of acquisition and even at the time of recording evidence before the trial court, there were no immediate prospects of residential developments beyond the canal, though such prospects could have been there in future, after construction of bridge over the canal. Therefore, in my opinion, the sale instances were rightly held by the trial court to be not of properties comparable with the acquired land. 08. The appellants-claimants have also produced copies of judgments delivered by the learned Civil Judge, Senior Division, Parbhani in Land Acquisition Reference Nos. 213/1982 at Exh. 40, 295/1982 at Exh.41, and common judgment in Land Acquisition Reference Nos. 438 and 439 of 1982 at Exh.42. There is also certified copy of judgment in L.A.R No. 216 of 1982 at Exh.43. In 8 the first place, there is nothing on record to indicate that these judgments have attained finality. It is not certain as to whether any appeals have been preferred or not against these judgments. Secondly, the Reference Court has observed that all these sale instances were of the properties situated within municipal limits and converted into Non Agricultural purposes. So, those are not properties comparable with the acquired land. So we cannot hold that said judgments can be considered to determine market value. 09. It is observed by learned Reference Court that the SLAO has considered the acquired land as dry land and accordingly awarded the price. In paragraph 20 of the judgment, the Reference Court has further observed that at Exh.50, there is 7x12 extract of the acquired land and it shows that there is a well situated therein. It is also admitted by SLAO that the land was seasonally irrigated. In this view of the matter, in my opinion, the SLAO ought to have awarded market 9 price for acquired land, treating the land to be seasonally irrigated. So, instead of awarding the amount of Rs.5438.38 ps., the market price ought to have been considered one and half times the price of dry land i.e.to be Rs.8,157.57 ps. So it is held that the appellants are entitled to Rs. 8,157.57 ps besides solatium at 30 per cent and 12 per cent component as per Section 23(1A) of the Land Acquisition Act thereon and interest on enhanced amount as per Section 28 of the said Act. 10. Hence, to the above extent this first appeal deserves to be and is accordingly allowed. Appellants would, therefore, be entitled to additional compensation as indicated above and to proportionate costs. pnd/fa228.93 (P.R.BORKAR, J.)