1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL No. 830 of 2010 The Executive Engineer, Beed Irrigation Division, Beed. Appellant V E R S U S 1- Sambha Malhari Wavhale, Age 51 years, Occu. Agril., R/o Nanaj, Tq. Ambajogai, Dist. Beed. 2- The State of Maharashtra, Through Collector, Beed. (formal party as any relief is not claimed against this respondent) Respondents Smt. Geeta Deshpande, Advocate for appellant. Shri. S.N. Kendre, A.G.P. for respondent No. 2. CORAM : A.V. NIRGUDE, J. DATE : 26th July, 2010. ORAL JUDGMENT : 1. This appeal filed against the Judgment and Award passed by the learned Adhoc District Judge-I, Ambajogai, District Beed in Land Acquisition Reference No. 862 of 1987, in which the respondent No. 1 was the claimant. The respondent No. 2 has acquired certain house properties situated at village Nanaj, Tq. Ambajogai, Dist. Beed, by issuing Notification under Section 4, on 14th February, 1979. In due course, the Special Land Acquisition Officer completed the land acquisition 2 proceeding by delivering an Award, awarding certain compensation to the respondent No. 1. In this case, the respondent No. 1 was compensated for acquisition of his two house properties. The respondent No. 1 filed the reference under Section 18 of the Land Acquisition Act, being aggrieved by the amount, which was awarded to him. His reference was opposed by the appellant and respondent No. 2. The main question between the parties at the level of the reference Court was, whether the respondent No. 1 was entitled to any additional compensation? In order to discharge such burden, the respondent No. 1 mainly adduced and relied upon the evidence of one property valuer, who supported his case, and deposed that the respondent No. 1 was entitled to almost double the amount of compensation, that was awarded by the Special Land Acquisition Officer. The respondent No. 1 did not adduce any evidence in respect of sale proceeds. The learned judge of the Lower Court rejected the claim of the respondent No. 1interalia holding that he did not prove the market value of the property in question. The learned Judge, however, awarded Rs. 1,000/- as symbolic amount per house to meet the expenditure incurred by the respondent No. 1 for shifting the residence. The learned judge placed reliance on 'clause fifthly' of sub section (1) of Section 23 of the The Land Acquisition Act for awarding such amount. The Respondent No.1 had not made such claim at all. This part of the impugned judment is challanged in this appeal. The question is whether compensation under clause fifthly could have been 3 granted in this particular case? The relevant provision is quoted below: Section 23 of the Act reads as under :- Section 23 :- (I) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration- First, the market-value of the land at the date of the publication of the [notification under Section 4, sub-section (i)]; secondly, the damage sustained by the persons interested, by reason of the taking of any standing crops of trees which may be on the land at the time of the Collector’s taking possession thereof. thirdly, the damage (if any) sustained by the persons interested, at the time of Collector’s taking possession of the land, by reason of servering such land from his other land; fourthly, the damage (if any) sustained by the persons interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning; fifthly, if, in consequence of the acquisition of the land by the Collector the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector’s taking possession of the land. (1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per cent per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (I) in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier; Explanation :- In computing the period referred to in this sub-section any period or periods during which the proceedings for the acquisition of the land were held up on account of any stay or injunction by the order of any Court shall be excluded. (2) In addition to the market value of the land as above provided the Court shall in every case award a sum of [thirty percent} on such market value, in consideration of the compulsory nature of the acquisition.” 4 As pointed out above the respondent No. 1 had no occasion to demand such compensation. He did not specifically plead for such compensation in his reference application, but he demanded compensation based on the market value of the properties in question, at the relevant time, which is covered by 'clause first' of sub section (1) of Section 23 of the Act. Every claimant, in addition to the enhanced compensation, based on the market value of his property, is entitled to claim additional compensation, if his case falls within any of the clauses namely secondly to sixthly. Such claim based on those clauses would be different than the claim made on the basis of market value. In order to bring the case of the respondent within the clause fifthly, he was not only obliged to plead that in the consequence of the acquisition, he changed his residence and incurred certain amount for making such change, in addition to that, he was under obligation to prove such fact. Unless such steps are taken, the learned Judge of the reference Court cannot utilize clause fifthly for awarding additional compensation. The finding recorded by the learned Judge of the reference Court that the respondent No. 1 was entitled to compensation based on clause fifthly is thus illegal and it deserves to be set aside. ORDER A] The appeal is allowed; B] Impugned Judgment and Award dated 18th August, 2007, passed by the learned Adhoc District Judge-I, Ambajogai, Dist. 5 Beed, in Land Acquisition Reference No. 862 of 1987 stands set aside. There shall be no order as to costs. C] In view of the disposal of appeals Civil Application No. 1261/2009 is disposed of. [ A.V. NIRGUDE, J. ] SDM* 4107.08FA.ok