1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD First Appeal No.44 of 1996 1) Kisan S/o Vithoba Tapkir ] Age 70 years, ] Occupation : Agriculture. ] ] 2) Devram S/o Vithoba Tapkir, ] Age 65 years, ] Occupation : Agriculture, ] Both residents of Khandvi, ] Taluka Karjat, ] District Ahmednagar. ].. Appellants. Versus * The State of Maharashtra ].. Respondent. With First Appeal No.45 Of 1996 1) Adinath S/o Vasant Tapkir ] Age 25 years, ] Occupation : Agriculture. ] ] 2) Sandip S/o Vasant Tapkir, ] Age 18 years, ] Occupation : Agriculture, ] Both residents of Khandvi, ] Taluka Karjat, ] District Ahmednagar. ].. Appellants. Versus * The State of Maharashtra ].. Respondent. 2 With First Appeal No.62 Of 1996 Bajirao Daulat Tapkir, ] Age 60 years, ] Occupation : Agriculture, ] R/o Khandvi, Taluka Karjat, ] District Ahmednagar. ] ... Appellant. Versus The State of Maharashtra. ] ... Respondent. With First Appeal No.320 Of 1996 * Madhav s/o Daulat Tapkir, ] Age 57 years ] Occupation : agriculture, ] R/o Khandvi, ] Taluka Karjat, ] District Ahmednagar. ] ... Appellant. Versus 1) The State of Maharashtra. ] ] 2) Sambhu s/o Ganba Gangarde,] Age 47 years, ] Occupation : agriculture, ] ] 3) Vasant S/o Ganba Gangarde,] Age 30 years, ] Occupation : Agriculture. ] ] 4) Ambadas S/o Ganba Gangarde,] Age 50 years, ] 3 Occupation : Agriculture, ] Respondents 2 to 4 are ] residents of Kombhali, ] Taluka Karjat, ] District Ahmednagar. ].. Respondents. -------- Shri. V.S. Bedre, Advocate for appellants. Shri. B.V. Wagh, Assistant Government Pleader for respondent – State of Maharashtra. -------- CORAM: R.M. BORDE, J. DATE: 11th JANUARY 2010 ORAL JUDGMENT : 1) The appellants / claimants are raising exception to the judgment and award passed by the Reference Court on 21st February 1995 while dealing with the Land Acquisition References presented by each of the appellants on the ground of inadequacy in awarding the enhancement in amount of compensation payable to the claimants. 4 2) Agricultural lands belonging to the claimants situate at village Khandvi, Taluka Karjat were acquired by the State for the purpose of construction of percolation tank. Notification under section 4 of the Land Acquisition Act was published on 24-8-1983 and after observing the procedure prescribed under the Act, Award came to be passed. The Land Acquisition Officer awarded compensation in respect of the acquired lands at the rate of Rs.5500 per hectare. Being aggrieved by the award passed by the Land Acquisition Officer the appellants/claimants presented different Reference Applications to the Special Land Acquisition Officer requesting him to refer the matter for proper determination of the value of the acquired lands to the Civil Court. The Reference applications were accordingly forwarded for determination of the value of the lands to the Civil Court. 5 3) According to the claimants the lands under acquisition were of high quality and fertility. The claimants were taking irrigated crops as there was facility of irrigation and the source of irrigation was well water available. It is contended that there were at least six wells situated in the acquired lands and that was the source of irrigation of the agricultural lands. It is thus contended by the claimants that the lands under acquisition were irrigated and as such they are entitled for higher price. The claimants also contended that about 40 acres of land was under irrigation from the source of well water. There were about 6 wells situated in the acquired lands. It is contended that the claimants had laid underground pipeline for irrigating the agricultural lands. They used to take crops like sugarcane, chilly, cotton etc. The compensation awarded by the Land 6 Acquisition Officer is quite meagre and considering the quality and fertility of the lands the claimants are entitled to receive value of the lands at the rate of Rs.50000/- per hectare. 4) In order to substantiate their contentions each of the claimant is examined before the Reference Court who had stated about quality, fertility as well as in respect of availability of irrigation facility for cultivation of the agriculture lands. The claimants have also placed on record evidence in the form of comparable sale instances in respect of agricultural lands which were within close proximity of the acquired lands. The claimants placed reliance on the copy of the sale deed executed on 18-2-1983 filed at Exhibit 9 in respect of a transaction which recorded consideration of Rs.10,000/-. The 7 land covered by the said transaction was situated at village Nimgaon Gangarde and it is stated that the said land is having facility of irrigation. There are two sale instances dated 30-12-1982 and 3-1-2983 placed on record at Exhibits 10 and 22 respectively. The said instances are in respect of 40 R and 81 R lands respectively and are purchased for consideration of Rs.13000/- and 40000/- respectively. The claimants have also examined one witness to prove the sale instance at Exhibit 9. Apart from proving the comparable sale instances, the claimants have also examined an expert valuer as well as another witness for proving the valuation of the structures situated in the acquired land. 5) The Reference Court while dealing with the Reference applications, after assessing the evidence led by the claimants, arrived at 8 conclusion that the claimants are entitled for enhanced compensation at the rate of Rs. 10,000/- per hectare. The reference Court recorded finding that the market value of the acquired land shall be Rs.10,000/- per hectare and after deducting the amount awarded by the Land Acquisition Officer which is at Rs.5500 per hectare the Reference Court held the claimants entitled to receive enhanced compensation at the rate of Rs.4500/- per hectare. 6) I have perused the evidence recorded by the Reference Court and heard arguments advanced by Shri. V.S. Bedre learned counsel appearing for the appellants and Shri. Wagh, learned Assistant Government Pleader for the State. 9 7) Shri. Bedre learned counsel appearing for the appellants has vehemently contended that the sale instances placed on record by the claimants are comparable with the lands under acquisition and considering the transactions between the willing purchasers and willing seller on which reliance is placed by the claimants they are entitled to receive higher amount of compensation. It is also contended that the Reference Court erred in placing reliance on the sale instances referred to in the Award passed by the Special Land Acquisition Officer without there being any positive evidence led by the State Government to prove those transactions. It is the contention of the learned counsel appearing for the appellants that it is not permissible for the Reference Court to refer to the findings recorded by the Land Acquisition Officer while passing award or to 10 make reference to such material collected by the Land Acquisition Officer during the course of the inquiry for passing the award. It is contended that the award passed by the Land Acquisition Officer is merely an offer and the price determined by the Land Acquisition Officer cannot be equated with the decision in respect of determination of the price of the property by the Reference Court. The evidence collected by the Land Acquisition Officer during his inquiry cannot be straightway relied upon without the same having been proved in accordance with the provisions of the Evidence Act by the State or the acquiring body. With these contentions the learned counsel appearing for the appellants prays to allow the appeals and direct enhancement in the amount of compensation receivable by the appellants. 11 8) The learned Assistant Government Pleader supported the judgment passed by the Reference Court and contended that the Court below has taken a reasonable view of the matter and awarded proper and adequate enhancement in the amount of compensation. 9) In order to substantiate his claim the claimant in First Appeal No.320 of 1996 has stepped into witness box and deposed about the quality and fertility of the acquired land. The claimant has stated in his evidence that there were about six wells situated in the agricultural land Gut No.463 out of which four wells are situated in the acquired portion. He has further stated that the agriculturists used to draw water from the wells for the purpose of irrigating the lands. Water was being provided to the lands by underground pipeline. It is stated by the claimant that 12 the claimant had installed oil engines on the wells and used to distribute water through underground pipeline laid by the respective claimants in the lands. The existence of the wells as well as the agriculturists having installed oil engines and laying pipe line for the purpose of providing water to the agricultural fields is not disputed by the respondent - State. It also appears on perusal of the 7/12 extracts placed on record by the claimants that they used to harvest crops like sugarcane, chilly, cotton, wheat etc. Thus, it can be accepted that the lands under acquisition were irrigated lands having facility of irrigation through the source of different wells situated in the acquired lands. Each of the claimants has deposed before the Court in similar fashion. Reliance is placed on the evidence of one Balu Madhavrao Gangarde, who is examined to prove 13 sale instance at Exhibit 9. The witness has deposed that he had sold land Survey No.5 admeasuring 20 R from village Nimgaon Gangarde owned by him for consideration of Rs.10,000/- in favour of one Vatslabai Kisan. He has further stated in his deposition that the distance between the land owned by him and the acquired land is about 2 kilometers. He has also deposed that the land covered by the sale instance is similar in fertility, climatic condition with that of the acquired land. 10) The learned Assistant Government Pleader has argued that reliance cannot be placed on the sale instance for the reason that firstly the sale instance is in respect of smaller piece of land and secondly the land covered by the sale instance is situated on the bank of river. He has invited my attention to the sale deed at Exhibit 9 wherein while 14 giving description of the land covered by the sale instance the northern boundary of the land is shown to be Seena river. It is then contended by the learned Assistant Government Pleader that the sale instance Exhibit 9 is not comparable and cannot be the basis for awarding enhanced amount of compensation. 11) The claimants have also placed reliance on the sale instances at Exhibits 10 and 22 copies of which are placed on record. The sale instance at Exhibit 10 is in respect of 40 R land which has been transferred for a consideration of Rs.13,000/-. It is stated that the land covered by this sale instance is situated at village Nimgaon Gangarde. The land covered by the sale instance Exhibit 10 gives value of the property at Rs.32,500 per hectare. 15 12) Another sale instance is at Exhibit 22 in respect of land admeasuring 81 R which has been transferred for a consideration of Rs. 40,000/- on 3-1-1983. The sale instances at Exhibits 10 and 22 are admissible in evidence in view of the provisions of Section 51A of the Land Acquisition Act. It transpires on perusal of the evidence that village Nimgaon Gangarde is at a distance of about 2 to 3 kilometers from the acquired land. As stated by the claimants in examination-in-chief before the Court that the lands under acquisition are having irrigation facilities and it is clear on appreciation of the oral evidence of the claimants that the agriculturists were able to take at least two crops in a year. Even if the contention of the learned Assistant Government Pleader to the effect that the land covered by the sale instance at Exhibit 9 is situated on the bank 16 of river Seena and as such is perennially irrigated is taken into consideration, it cannot, however, be concluded that the acquired lands are dry crop lands. The Reference Court has committed a mistake in holding that the lands under acquisition are dry crop lands. The sale instance at Exhibit 10 dated 30-12-1983 shows that the market price of the land in the vicinity during the relevant period was around Rs.32,000/- per hectare in respect of dry crop land. The claimants are held entitled for receiving compensation at the rate of Rs.10,000/- per hectare. Even if some allowance is given for the factors such as proximity of the acquired lands from the lands covered by the sale instance as well as factors such as the land covered by sale instance at Exhibit 9 being perennially irrigated land still it cannot be concluded that the market price of the 17 acquired land is as low as Rs.10,000 per hectare. Exhibit 9, sale instance, which is proved gives market price at about Rs.50,000 per hectare whereas the Exhibit 10 which is in respect of dry crop land gives the value of the property at the rate of Rs.32000 per hectare. The lands covered by both these sale instances are situate at a distance of about two kilometers from the acquired lands. The sale instance at Exhibit 10 is a post notification sale. The award was passed by the Land Acquisition Officer on 24-8-1983 whereas the sale instance at Exhibit 10 is executed on 30-12-1983. There is no bar for consideration of the post notification sale unless it is brought to the notice that because of the acquisition there is spurt in the price. In the instance case there is no such evidence led by the State to draw conclusion that because of the acquisition of the lands, 18 there is spurt in the price of the agricultural lands in and around the vicinity. 13) There cannot be any straight jacket formula for arriving at a reasonable market price of the acquired land. Several factors such as fertility of land, availability of irrigation facilities, availability of facilities for transportation, nearness of the property to urban area, cropping pattern are some of the relevant factors which are required to be taken into consideration while arriving at reasonable price of the acquired land. The Full Bench of this Court while answering a reference in the matter of State of Maharashtra v. Prashram Jagannath Aute, reported in 2007(5) Mh.L.J. 403 has recorded in para 5 of the judgment thus : “5. The analytical examination of the above enunciated principles of law 19 would lead to no other conclusion but each case of determination of market value of the acquired land has to be decided on its own facts, existing statutory guidelines stated in sections 23 and 24 of the Act and in the backdrop of judicial pronouncements controlling exercise of jurisdiction under section 18 of the Act. The evidence led by the parties and, particularly the claimants, would have to be scrutinized so as to arrive at a just, fair and adequate compensation. Another facet of this aspect of acquisition law is what kind of methodology the Court would adopt while arriving at a conclusion. Should it adopt capitalization method, multiple method, belting system or evolve any other method which necessarily would have to depend on record before the Court. Location and potential of the land cannot be a question of law; it will ever be a matter of fact. The enunciated principle of law which, de hors the evidence on record, can be applied to every case, is not only improbable but is even impermissible. ..... “ The Supreme Court in the case of Chimanlal Hargovinddas vs. Special Land Acquisition Officer and another, (1988) 3 SCC 751 has laid down the principles governing the factors 20 regulating the discretion of awarding compensation by the Court as under: “(1)A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilized by him for making his valuation cannot be utilized by the Court unless produced and proved before it. It is not the function of the Court to sit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an Appellate Court. (3) The Court has to treat the reference as an original proceeding before it and determine the market 21 value afresh on the basis of the material produced before it. (4)The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under section 4 of the Land Acquisition Act (dates of Notifications under sections 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under section 4) as if the value is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which 22 provide the index of market value. (8) Only genuine instances have to be taken into account. (Sometimes instances are rigged up in anticipation of Acquisition of land). (9) Even post notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (10)The most comparable instances out of the genuine instances have to be identified on the following considerations: (i) proximity from time angle, (ii) proximity from situation angle. (11)Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. 23 (12)A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13)The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. (14)The exercise indicated in Clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may, illustrate some such illustrative (not exhaustive) factors: Plus factors Minus factors 1.smallness of size. 1. largeness of area 2.proximity to a road. 2. situation in the interior at a distance from the road. 3. frontage on a road. 3. narrow strip of land with very small frontage compared to depth. 4. nearness to developed area. 4. lower level requiring the depressed portion to be filled up. 5. regular shape. 5. remoteness from developed locality. 24 6.level vis-a-vis land under acquisition. 6. some special disadvantageous factor which would deter a purchaser. 7. special value for an owner of an adjoining property to whom it may have some very special advantage. ______________________________________________ (15)The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq.yds cannot be compared with a large tract or block of land of say 1000 sq.yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% tn 50% to account for land required to be set apart for caving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and 25 whether waiting period during which the capital of the entrepreneur would be locked up, will be longer or shorter and the attendant hazards. (16)Every case must be dealt with on its own facts pattern bearing on mind all these factors as a prudent purchaser of land in which position the Judge must place himself. (17)These are general guidelines to be applied with understanding informed with common sense.” 14) Taking into consideration the guidelines prescribed by the Apex Court as well as on consideration of the evidence led by the claimants in the instant matters it can be positively concluded that the claimants are entitled to receive enhanced amount of compensation for the lands acquired by the State. The market price arrived at by the Reference Court is too meagre and as such the claim raised by the claimants in the appeals needs to be considered positively. Taking into 26 consideration the sale instance at Exhibit 9 which gives the market price of the 20 guntha land covered by the said sale instance at Rs. 10000 as well as the sale instance at Exhibit 10 which gives the market price of the dry crop land at Rs.32,500 per hectare, I am of the opinion that the market price of the land under acquisition needs to be enhanced on consideration of certain positive and negative factors. The arguments advanced by the learned Assistant Government Pleader while raising objection for placing reliance on sale instance at Exhibit 9 that the land covered by the said sale instance appears to be perennially irrigated land will have to be taken into account. However the claimants in the instant matter cannot be granted compensation equal to the claim raised by them. But at the same time it cannot be lost sight of the fact that the lands acquired by 27 the State were having facility of irrigation and the claimants used to take crops such as sugarcane, cotton, chilly etc. It also cannot be concluded, as observed by the reference Court, that the lands under acquisition are dry crop lands. The sale instance at Exhibit 10 which gives market price at Rs.32,500 is in respect of dry crop land. If some allowance also is to be given to the factors such as distance between the acquired lands and the lands covered by the sale instance at Exhibits 9 and 10, admittedly the land covered by the sale instance at Exhibit 9 is situated at about 2 to 3 kms away from the acquired lands. However, at the same time, there is no denial of the fact that the land covered by the sale instance at Exhibit 9 is of the same fertility and quality as that of the