1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 782 OF 1991 IN L.A.R. NO. 73 OF 1985 ALONGWITH CROSS OBJECTION STAMP NO.28333 OF 1991 The State of Maharashtra .. Appellant (Through the Special Land Acquisition Officer. (Orig.Opponent Minor Irrigation, Nashik) v/s. 1. Nivrutti Tukaram Bhagwat 2. Kisan Laxman Bhagwat 3. Pandurang Laxman Bhagwat .. Respondent All resident of Deolali, Tal. & Dist. Nashik ALONGWITH FIRST APPEAL NOS.783/1991 TO 798/1991 AND CIVIL APPLICATION NOS. 5016/2001, 1887/2004, 1893/2004 TO 1897/2004, 4498/2005 AND 4499/2005 Mr. K.K. Tated, Assistant Government Pleader for the State. Mr. V.Z. Kankaria for Cross-objectionist. Mr. P.N. Joshi for claimants. 2 CORAM : SWATANTER KUMAR, C.J. & V.M. KANADE, J. Date of reserving the judgment : 4th June, 2008 Date of pronouncing the judgment : 12 th June, 2008 JUDGMENT (Per Swatanter Kumar, C.J.) Before we proceed to deal with the appeals in hand, we are called upon to decide civil application No. 5016 of 2001. This is an application filed on behalf of the respondents-claimants in the appeals praying that they be permitted to lead additional evidence by allowing them to produce the judgment passed by the Joint District Judge, Nashik on 15th July, 1995 in Land Acquisition Reference No. 191 of 1988 with Land Acquisition Reference No. 192 of 1988 on record and the same be read in evidence. This application was filed on 31st October, 2001 and copy of the judgment dated 15th July, 1995 had been annexed to this application. Despite its pendency before the court for a long time, no reply on behalf of the State has been filed and, in fact, during the course of hearing, there was no serious opposition for grant of prayer made in this application. We are even 3 otherwise satisfied that as per the averments made in the application, the judgment in Land Acquisition Reference No. 191 of 1988 was passed on 15th July, 1995 while the reference court passed the impugned judgment on 28th February, 1991. It is obvious that the evidence sought to be produced now was not in existence at the time of passing of the award and the present appeals have been filed in this court in the year 1991 itself and have been pending before this court. Particularly, in view of the fact that there is no opposition to the prayer, we have no hesitation in allowing these applications and taking the judgment and award dated 15th July, 1995 in Land Acquisition Reference No.191 of 1988 on record. The same shall be read in evidence and is exhibited as “CA”. 2. As we have dealt with the application for additional evidence in the case of Nivrutti Tukaram Bhagwat, in First Appeal No.782 of 1991. We will take the said Appeal as a lead case and all other connected 16 Appeals and one Cross Objection Stamp No.28333 of 1991 in Appeal No. 782 of 1991 filed by the Claimants 4 will be dealt with together and disposed of by this common judgment. 3. There are 8 Civil Applications being Nos. 1887 of 2004, 1893 of 2004 to 1897 of 2004, 4498 of 2005 and 4499 of 2005 filed by the State for bringing the legal representatives of the deceased Respondent Claimants on record. Reply to the said Applications have not been filed despite the fact that these applications have remained pending before the Court for a considerable time. In fact, there is no opposition to these Applications. Consequently, all these Applications are allowed subject to just exception and the legal representatives of the deceased Respondents in respective Appeals are permitted to be brought on record. Amended Memo of Appeal be taken on record. All the impleaded Claimants would be entitled to the reliefs granted in the present Appeals in accordance with law. 4. Now we may refer to the basic facts giving rise to the present Appeals. State of Maharashtra in order to provide lands for one of its projects, namely, Railway Traction Equipment Factory at 5 Deolali, District Nashik, with an intention to acquire land for that project issued a Notification under Section 4 of the Land Acquisition Act (hereinafter referred to as “the Act”) on 26th February 1981. In furtherance to this Notification, declaration under Section 6 was issued on 18th May 1981. The SLAO exercising the powers of the Collector conferred upon him under the provisions of the said Act and after following due procedure, made the Award under Section 11 of the Act on 21st April 1984. The SALO awarded compensation at the rate of Rs.80,000/- per hectare for all kind of other lands and at the rate of Rs.200/- per hectare for pot kharaba land belonging to the Claimants. The Claimants felt aggrieved by this Award and filed References under Section 18 of the Act, which in turn were referred by the SLAO to the Court of compensation jurisdiction. In their Applications under Section 18 of the Act, the Claimants claimed compensation at the rate of Rs.2,00,000/- per hectare though they had accepted compensation under protest on 30th April 1984. The parties led evidence before the Reference Court which pronounced its judgment and Award dated 28th February 1991 granting the following 6 reliefs to the Claimants :- “25. Therefore, from the facts and circumstances of the case, I am of the view that the claimants in L.R. No.73/85 are entitled to the additional compensation for acquired lands at the rate of Rs.25/- per sq. metr. In respect of their land gat No.157/1/1, area 4-A 45-R which comes to Rs.10,77,640 for 43100 sq.mtrs. In addition to this amount, the claimants are also entitled to the solatium at the rate of 30% of the market value, which comes to Rs.32,3292 and component at the rate of 12% per annum for 38 months period i.e. From 26.2.81 till 21.4.84 which comes to Rs.409403.20. Thus, the claimants are entitled the total amount of compensation of Rs.18,10433/- including the solatium and component out of this amount awarded by the S.L.A.O. will have to be deducted. i.e. Rs.396552.20 will have to be deducted as the claimants are entitled to set compensation amount of Rs.1413883. 26. Under the provisions of section 28 and 34 of the L.A. Amendment Act (68/84), the claimants are also entitled the interest at 9% per annum on Rs.18,10435.20, for the first year from the date of possession i.e. 17.4.74 for first year i.e. Till 16.4.75 and further interest at the rate of 15% per annum from 16.4.75 till the date of award i.e. 21.4.84 on Rs.1810485.20. 27. Opponent to pay the costs of this reference to the claimants and bear its own costs. 7 Award be drawn accordingly. 28. As already stated, there are other references which are tried along with L.R. No.73/85 in which the evidence has been recorded by common consent of both the sides and it is clear that the lands involved in the acquisition proceedings out of which the other land reference have arises, are situated in the same village and are adjacent to each other and so the claimants in these reference will be entitled to the same marked value i.e. At the rate of Rs.25/- per sq. mtr. which is fixed in L.R. No.73/85 on merits. So, the concerned claimants in the other reference will be entitled to receive the amount of compensation as per area of their lands acquired by the Government for which, the following chart is prepared and appended hereto. 29. The claimants in other reference Nos.67/85 to 72/85 and 74/85 to 83/85, are entitled to receive additional amount of compensation as shown in Col. No.10 of the chart appended hereto. 30. Claimants are also entitled to the interest on the amount shown in Col.No.8 of the Chart at the rate of 9% per annum for the first year from the date of dispossession i.e. From 17.4.74 to 16.4.75 that of 15% p.a. from 16.4.75 till the date of award i.e. 22.4.84. 30. The claimants are also entitled to 8 further interest at the rate of Rs.15% per annum on the amount shown in Col.No.10 of the chart from 22.4.84 (from the date of award) till realisation. 31. The claimants are entitled to the costs of these land references from the opponent and the opponent to bear its costs of these land references. 32. The awards be drawn accordingly.” 5. The State being dissatisfied from the extent of compensation awarded to the Claimants filed the above 17 Appeals against the judgment of the Reference Court dated 28th February 1991 praying that the said judgment should be set aside as it was not supported by any evidence and inadmissible or irrelevant evidence had been taken into consideration by the Court. The Claimants filed no appeals against the said judgment, at least none have been listed before the Court. Only one Cross Objection being Cross Objection Stamp No.28333 of 1991 in First Appeal No.782 of 1991 has been filed. In the Cross Objection, the said Claimant, namely, Nivrutti Tukaram Bhagwat, has claimed compensation at the rate of Rs.35/- 9 per sq. mtr. i.e. Rs.3,50,000/- per hectare. It may be noticed at this stage itself that the Claimants who had filed the only Cross Objection had claimed compensation at the rate of Rs.2,00,000/- per hectare in their Petition under Section 18 of the Act. This Petition was never amended so as to claim any enhanced amount. It is for the Claimants to justify that despite their claim of Rs.2,00,000/- in the Petition under Section 18, they would be entitled to receive higher compensation. In light of the above facts, we may, therefore, be required only to decide the Appeals preferred by the State against the impugned judgment. 6. The main contention raised on behalf of the State is that the learned Reference Court could not have relied upon Exhibit 23 in determining the compensation payable to the Claimants. Vide Exhibit 23, parties had entered into an agreement on 11th June 1981 for purchase of land admeasuring 2 hectares 63 ares located in village Panchak which was sold for a sum of Rs.6,17,000/-. This gives sale price at the rate of Rs.2,34,600/- per hectare. It is contended on behalf of the State that Exhibit 23 could not be the basis for 10 determining the market value of the land in question. Firstly, this relates to sale of land in another village which is 4 kms. away from Railway Station and falls in another village. Sale instances of land falling in another village need not be considered by the Court particularly where direct evidence from the same village is available. Secondly, this was merely an agreement to sell and not a sale deed. Motilal, whose statement was recorded at Exhibit 22, proved this agreement to sell Exhibit 23. According to him, nine persons had entered into an agreement to purchase with one Bakubai Bode and others. This land was purchased by them for making plots. An amount of consideration was to be paid within a period of seven months. According to the Claimants, the transaction was to be completed within seven months and they had even sold the plots further. As such the value indicated in Exhibit 23 should be treated as a guide for determination of the market value. In view of these contentions, the Court has to keep in mind the fact that undisputedly the land situated in Village Panchak is adjacent to the acquired land. This is not a sale instance from Village Deolali but being an adjacent 11 village, it should be treated to be of some relevance, may not be a direct evidence for determination of market value. 7. The learned Reference Court in relation to Exhibit 28 had recorded the following findings :- “16. Coming to the other sale instance, the claimants have examined one Purshottam Patel, C.W. 5 at Exh.28, who has purchased land from Deolali Shivar from the vendor Aswale and others on 19.6.78 for Rs.30,000/-, admeasuring 13-R from S.No.252/6/ 2/2 and index extract is produced, because the original sale-deed is not received back from the sub-Registrar. The land is agricultural land which is about one kilometer distance from the acquired land and after purchasing the land P.W. 5 Patel leveled it by expanding Rs.8000 to Rs.9000/- and started saw mill after about two years, after purchasing the land. There is water and electricity facility to the said land. But the land purchased by him, was a piece of land. In the cross-examination he has admitted that he did not make any complaint about the non-receipt of the sale-deed and railway station, Nashik Road is near from his land i.e. At the distance of court premises upto the golf club, Nashik. He admitted that S.No.252 is adjacent to Nashik Pune Road i.e. At the corner of Samantaon road and Nashik where shops and hotels on Pune road after the railway bridge. Considering the sale instance 12 proved by P.W. 5, it appears that he purchased 13-R of land for Rs.30,000/- in 16.6.78, which comes to Rs.1525/- per ares. As already stated, the date of notification is 26.2.81, while three years prior to the while present transaction is of the 1978 i.e. About three years prior to the notification and the land is also near railway station, Nashik road.” 8. As already noticed, we are unable to accept the above findings. The learned Reference Court could have safely excluded this evidence from the record particularly in face of Exhibit 28 as well as the statement of Witness No.5 wherein the witness had purchased the land measuring about 13 ares for Rs.30,000/- and had produced the index extract of sale deed and the land was one km. away from the acquired lands of the Claimants. This gave the value of the land as Rs.2,30,000/- per hectare as on 19th June 1978. 9. The most relevant piece of evidence which would have had a direct bearing on the matters in issue is Exhibit 38. This is a sale deed vide which land measuring about 39 ares was purchased for a 13 sum of Rs.29,000/- thus reflecting price of the land at the rate of Rs.75,000/- per hectare. The land was from the revenue estate of village Deolali. 10. Thus, according to Exhibit 38, the value as per the sale price of the land in village Deolali near to the acquired land as on 9th June, 1980 was Rs.75,000/- per hectare and the claimants would be entitled to a reasonable increase as the area was under development. As per the statement of claimants' witness No.3, Motilal (Exhibit 22), the lands in and around the area in question was being sold at a much higher price viz. 2 hectares 63 Ares of land was sold for a sum of Rs.6,17,000/-. In terms of statement of claimants' witness No.1, Nivrutti (Exhibit 7), one of the claimants, clearly stated that all the acquired lands are adjacent to each other. All the lands are from Nashik Road Deolali area and the lands are presently in Nashik Municipal Corporation area. Thermal Power Station is stated to be 1 to 1.5 kms. from these lands and Nashik Road Railway Station is also at the same distance. Kirloskar Tractor Factory is adjacent to lands in question and the India Security Press is also at a distance of 1 to 1.5 14 kms. Beside all this, paper mill and other industries which were established as back as in the year 1976 and prior are also located near the acquired land. 11. In the Award made by the SLO on 30th August 1983, it was noticed with regard to situation and description of the acquired land “the village Deolali is situated at 7 K.M. away from Nashik which is fast developing city. It is situated on main railway line and all trains going towards Bombay and Nagpur side use to stop. The Military Artilary Centers at Nashik is famous. The Deolali Cantonment on the west side, the lands under reference are adjoining to Eklahare Thermal Power Station, Ekalahare is about 1/2 km.....” It is further noticed in the Award that the lands were agricultural and possession of the land under acquisition was taken by the acquiring body in the month of April 1974 and since then they have been deprived of getting agricultural income from the said lands. Thus, the location and situation of the land as well as its potential is quite well described in the Award and is subsequently supported by the statements of 15 different witnesses. 12. Exhibit 38 has been ignored by the Reference Court primarily on the ground that it is not comparable sale instance and, therefore, not a relevant piece of transaction entered into between a willing and voluntary purchaser and seller. It had been noticed in paragraph 20 of the judgment that the seller Sonwane was suffering from T.B. for 4/5 years and had sold the land for his maintenance and also that land near Samangaon was sold at the rate of Rs.400/- per guntha in 1982-83. In relation to Exhibit 40, it was stated in the cross-examintion of the witness Houshabai that her husband had purchased the land from Laxman Bhor who is their close relative who had even other land on Samangaon road. The learned Reference Court thus observed as under : “22. ... If find that the sale instance proved by the State through the evidence of C.W. 2 Housabai. The price paid by her to the vendor Laxman Bhor is paid, as vendor was rather hard press for money as he was unable to pay mortgaged amount land his wife also was serious ill because of 16 burn injury. The land was grass land and purchaser was improved it and there is reason to believe from the admissions of purchase Houshabai Khapre that the vendor was not a willing seller of the land. So the sale instance of Rs.21000/- of the year 1979, cannot be said to be comparable sale instance.” 13. We have said that Exhibit 38 would be a relevant piece of evidence, but as it does not reflect the true and fair market value of the land in question as the same was not voluntary sale. The land was sold by the vendor to the vendee under compelling circumstances of serious illness and in the other cases it was sale transaction between the relatives who would obviously not disclose the true market value. We are prepared to accept the conclusion of the trial Court and the Reference Court that both these Exhibits 38 and 40, though may be admissible in evidence cannot be taken into consideration for determining the just and fair market value of the land as on the date of acquisition. 14. The relevant and proper comparable sale instances are 17 available on record which can form the basis for determination of a fair market value. Determination of compensation by a judicial process essentially should be based on proper evidence and cannot be based on surmises and conjectures. With this observation, now we must proceed to discuss the judicial pronouncements which are available on record and can form a fair precept to decide the controversy initiated. As already noticed above, as a result of C.A. No. 5106 of 2001 being allowed, this Court has to consider the effect of the Award of the District Judge, Nashik made on 15th July 1995 in relation to acquisition of land from Village Dasak, District Nashik, where land was acquired vide Notification dated 11th October 1979. There the Court while enhancing the compensation had noticed that adjacent lands in the vicinity of the neighbouring villages had been acquired and which area was acquired for the use of a public purpose M.S.E.B. and others, the lands were stated to be within the limits of Corporation area of Nashik. Reference was also made to the Security Press, Railway Station and other offices in the vicinity in that case. After discussing the evidence led in those cases, the Court enhanced 18 the compensation payable while referring to the various judgments of the Division Bench and determined the compensation payable to the Claimants, awarded Rs.65/- per sq. mtr. as the rate of lands and deducted 15%. What needs to be noticed is that in this Reference Petition, reference was also made to the fact that in Land Reference No.223 of 1987 decided on 27th October 1994, it has also been noticed in this Reference that the SLAO himself had awarded compensation at the rate of Rs.26.50 per sq. mtr. after making deductions for development of streets, laying pipe lines, etc. Obviously, the lands in that Reference were of better quality and had a better location. The compensation awarded by the Court was at the rate of Rs.65/- minus 60% and 30% respectively, as the case may be. Besides this Award, Exhibit 23 may not be a direct evidence, but would be a factor which the Court can take into consideration in view of the fact that other relevant evidence having a direct bearing in the matter in issue is not really available on record. In terms of Exhibit 23, the land in village Panchak, which is stated to be near by the acquired land was sold at the rate of Rs.2,34,60/- per hectare, the 19 Court has to take into consideration the increase of sale price of the land in and around the acquired land. This aspect of the matter has been correctly valued by the Reference Court in the impugned judgment. Development activity around the acquired land was going on. There was no evidence to show that there was reduction in the price of the land. On the contrary, the oral and documentary evidence on record shows that there was an increasing trend in the market value of the land in question. 15. Keeping in view the Award of the District Judge, Exhibit CA and Exhibit 38 coupled with the fact that the Court has to apply certain element of guess work particularly when there is no direct and relevant evidence available for determining the fair market value of the land, there is no reason for this Court not to accept the conclusion arrived at by the learned Reference Court. We are unable to accept the contention raised on behalf of the State that the Award by the Reference Court is based on no evidence. On the contrary, the lands which were again located within the limits of Municipal Corporation 20 area of Nashik or around Nashik, the Collector himself had assessed the market value of the land at the rate of Rs.26.50 per sq. mtr. in face of which none of the contentions raised on behalf of the Respondents can hold good. 16. For the reasons stated above, we do not find any merit in the State Appeals as well as the Cross-objection filed by the Appellant, except to the extent of the pot kharaba land which is stated to be only 14 Ares. The Claimants would be entitled to get compensation for pot kharaba land atleast at the rate of Rs.10/- per sq. mtr. i.e. nearly less than half of the compensation awarded for lands other than pot kharaba. 17. Accordingly, all the above Appeals, Cross-Objections and Civil Applications are disposed of. CHIEF JUSTICE 21 V.M. KANADE, J.