1 /UNREPORTED/ IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NOS.1001/2006, 1002/2006, 1003/2006, 1004/2006, 1005/2006, 1006/2006 1007/2006, 1008/2006, 1009/2006, 1010/2006, 1011/2006, 1012/2006, 1013/2006, 1014/2006, 1015/2006, 1016/2006 and 1017/2006. Date of decision:26/2/2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/. may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? /No 3. Whether Their Lordships wish to see /No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/1002-06fagr 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NOS. 1001/2006, 1002/2006, 1003/2006, 1004/2006, 1005/2006, 1006/2006 1007/2006, 1008/2006, 1009/2006, 1010/2006, 1011/2006, 1012/2006, 1013/2006, 1014/2006, 1015/2006, 1016/2006 and 1017/2006. ... FIRST APPEAL NO.1001 of 2006 WITH Ram s/o Ismail Gaikwad, Age 65 years, Occ. Agril. R/o. Killari, Tq. Ausa, Dist.Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... 3 FIRST APPEAL NO.1002 OF 2006 WITH Manmat s/o Bhaurao Birajdar, Age 52 years, Occ. Agril. r/o. Killari, Tq. Ausa, Dist.Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1003 OF 2006 WITH Manohar s/o Shankar Gaikwad, Age 55 years, Occ. Agril. r/o. Killari, Tq. Ausa, Dist. Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 4 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1004 OF 2006 WITH Ashok s/o Vishwanath Birajdar, Age 40 years, Occ. Agril. r/o Killari, Tq. Ausa, Dist. Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... 5 FIRST APPEAL NO.1005 OF 2006 WITH Ishwar s/o Santram Babalsure, Age Minor U/G of his father, Santram s/o Gopala Babalsure, Age 60 years, Occ. Agril. R/o. Killari, Tq. Ausa, Dist. Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1006 OF 2006 WITH Indubai w/o Sataba Birajdar, Age 65 years, Occ. Agril. & H.H. r/o Killari, Tq. Ausa, Dist.Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 6 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1007 OF 2006 WITH Fulchand s/o Vishwanath Birajdar, Age 52 years, Occu. Agri., r/o Killari, Taluka Ausa, District: Latur. ...APPELLANT/ORIG.CLAIMANT VERSUS 1. The State of Maharashtra, Through Collector, Latur. 2. District Re-settlement Officer, Latur, District Latur. ...RESPONDENTS/ORIG.RESPDTS.) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... 7 FIRST APPEAL NO.1008 OF 2006 WITH Vishwanath s/o Yeshwantrao Birajdar, Age 65 years, Occ. Agril. R/o. Killari, Tq. Ausa, Dist. Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1009 OF 2006 WITH Limba s/o Maruti Balapure, Age 55 years, Occ. Agril. R/o Wanewadi, Tq. Ausa, Dist. latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) 8 ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1010 OF 2006 WITH Babruvahan s/o Annarao Birajdar, Age 42 years, Occ. Agril. r/o Killari, Tq. Ausa, Dist. Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1011 OF 2006 WITH 1. Narayan s/o Rama Gaikwad, Died through L.Rs. 1/a. Smt. Rukminibai w/o Gunda Gaikwad, died through LRs. 1/a/a. Ramesh s/o Gunda Gaikwad, Age: 40 years, Occu.Agril. 9 1/a/b. Ram s/o Gunda Gaikwad, Age 35 years, Occu: Agril. 1/b. Shankar s/o Rama Gaikwad, Age 75 years, Occu: Agril. 1/c. Madhav s/o Rama Gaikwad, Age 72 years, Occu: Agril. 1/d. Sadhu s/o Rama Gaikwad, Age 70 years, Occu.Agril. 1/e. Sambhaji s/o Rama Gaikwad, Died, through L.Rs. 1/e/a.Shantabai w/o Sambhaji Gaikwad, Age 65 years, Occu.Agril. & H.H. 1/e/b.Vijay s/o Sambhaji Gaikwad, Age 30 years, Occu: Agril. 1/e/c.Balaji s/o Sambhaji Gaikwad, Age 27 years, Occu: Agril. 1/e/d.Anand s/o Sambhaji Gaikwad, Age 24 years, Occu.Agril. All r/o Killari, Tq. Ausa, Dist.Latur. 1/e/f.Sow. Sunanda Dattu Kamble, Age 40 yrs. Occu: Household, R/o.Gugalgaon, Tq. Ausa, Dist. Latur. 1/e/g.Sow.Nandabai Dattu Kamble, Age 30 yrs, Occu.Household, r/o. Lohara, Tq. Ausa, Dist.Latur. 10 1/f. Harichandra s/o Rama Gaikwad, Age 65 years, Occ. Agril. All R/o Killari, Tq. Ausa, Dist. Latur. ...APPELLANTS (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1012 OF 2006 WITH Vishwanath s/o Yeshwanta Birajdar, Age 67 years, Occ.Agril. R/o. Killari, Tq. Ausa, Dist.Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) 11 Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1013 OF 2006 WITH Rajendra s/o Baliram Sagar, Age 37 years, Occ. Agril. r/o Killari, Tq. Ausa, Dist. Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1014 OF 2006 WITH Hariba s/o giyanu Surwase, Died through L.Rs. 1a. Raghunath s/o Hariba Surwase, Age 45 years, Occ. Agril. r/o Killari, Tq. Ausa, Dist. Latur. 12 1b. Bhimrao s/o Hariba Surwase, Age 40 years, Occu: Agril. r/o. Killari, Tq. Ausa, Dist. Latur. ...APPELLANTS (Orig.Claimants) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1015 OF 2006 with Pralhad s/o Vishwanath Babalsure, Age 35 years, Occ. Agril. r/o Killari, Tq. Ausa, Dist. Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... 13 Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1016 OF 2006 WITH Tulshiram s/o Vithoba Jadhav, Died through L.Rs. 1/a. Smt.Suglabai w/o Tulshiram Jadhav, Age 66 years, Occu: Household, r/o Killari, Tq. Ausa, Dist.Latur. 1/b. Sow.Vijayabai w/o Udhav Nilema, Age 37 years, Occu: Household, R/o.Mushirabad Tq. & Dist.Latur. 1/c. Vithal s/o Tulshiram Jadhav, Age 32 years, Occ. Labour, R/o. Killari, Tq. Ausa, Dist. Latur. 1/d. Shridhar s/o Tulshiram Jadhav, Age 27 years, Occu: Labour, R/o As above. ...APPELLANTS (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. 14 Mr. V.D.Rakh, A.G.P. for respondent State. ... FIRST APPEAL NO.1017 OF 2006 Vasant s/o Annarao Birajdar, Age 52 years, Occ. Agril. R/o Killari, Tq. Ausa, Dist. Latur. ...APPELLANT (Orig.Claimant) VERSUS 1. The State of Maharashtra, Through its Collector, Latur. 2. The District Resettlement Officer, Latur. ...RESPONDENTS (Orig.Respondents) ... Mr. N.P.Patil Jamalpurkar, Adv., for appellant. Mr. V.D.Rakh, A.G.P. for respondent State. ... CORAM: K.U. CHANDIWAL, J. DATE :26/2/2010 *** Date of reserving the judgment: 22/2/2010 Date of pronouncing the order/judgment:26/2/2010 *** JUDGMENT: 1. These appeals seek to challenge so called inadequate enhancement in the group of 15 Land References, preferred individually by the claimants/owner, before the learned Reference Court ( Ad hoc Additional District Judge, Latur). 2. Counsel submits, enhancement by the Court is merely a guess work as he has simply doubled the price held by the learned Land Acquisition Officer. The factual details in First Appeal No.1007/2006 are referred for simplification. Several lands of the claimants situate in villages namely, Yelwat, Killari and Karla, were subjected to the proceedings for land acquisition for the purpose of re-settlement of village Killari destroyed in earth quake in Sept.,1993. The notification under Section 4 of the Land Acquisition Act was dt.28.7.1994. 3. It was canvassed, the land was fertile. The claimants had crops like Sun-flower, ground- nut, wheat, chilli, paddy, sugarcane providing them a good yield. The claimants asserted before the Land Acquisition Officer that the price of their lands should have been assessed at the rate of Rs.60,000/- per acre. The Land Acquisition Officer did not consider the potential value of the said lands. 4. Learned Counsel submits that the sale instances from different villages and, particularly of Exh.73, dt.25.11.1993 for 8 16 gunthas of land, which fetched Rs.6900/- per R. and the sale instance at Exh.75 for 3 acres and 15 gunthas of land which earned price of Rs. 53,185/- per acre, Rs.1320/- per Are is not considered, though the sale instance is of 24.4.1992. Escalation, in prices even notionally after every year, at the rate of 10 per cent, should have been added. 5. Learned A.G.P. pointed out that the sale deed at Exh.73 could not be considered as it is a plot abutting main road, having commercial potentiality. So far as sale deed Exh.75, dt. 24.4.1992 of village Malvat Shiv is concerned, learned A.G.P. pointed out that the land had a well, 50 per cent of the rights in the well water were sold by the seller. He pointed out, no evidence adduced to show that the lands of different claimants were irrigated (Bagayat lands) and had such high agricultural potentiality even to stake claim in tune with the sale instance at Exh.75. He urged, the learned Reference Court has doubled the compensation from Rs. 320/- per R. awarded by learned Land Acquisition Officer to Rs.640/- per R. Hence, no interference desired. 6. The settled position about determination of amount of compensation to be awarded for the acquired lands can be summarized as under: 17 "(a) The bona fide transactions of purchase or sale of lands adjacent to the acquired lands vis-a-vis their genuineness to be seen. (b) The proximity of the acquired lands from the land under sale and the potentiality thereof. (c) Size of the lands and advantageous position of the land under acquisition. (d) Yields taken from the property." 7. The Courts have also observed, irrigated land fetched considerably higher value in market, than the value of the dry crop, furnishing more yield and income to the owner. 8. The description of respective properties of the land holders/claimants, the date of notification under Section 4 of the Land Acquisition Act, dt.28.7.1994, the award dt. 31.3.1995, are not in controversy. 9. The learned Reference Court framed issues below Exh.8 on 26.9.1997 as under: "1. Whether the claimants prove that the compensation awarded by Spl.L.A.O. is inadequate ? Affirmative. 18 2. What was the reasonable At the double market price of the land rate of the acquired when the notification compensation under section 4 of the L.A. awarded by Act was issued. the S.L.A.O. 3. Are the claims are within limitation? Affirmative. 4. To what amount the claimants are entitled for well, trees and bunds, etc. ? Negative. 5. To what reliefs claimants are entitled for ? As to the enhanced compensation of the lands only. 6. What order & decree ? As per final order." 10. Before the learned Judge, evidence of Vyankat Bone, who was vendor of land survey No. 29/A of village Shirsal was put in. Two claimants had also stepped in. There was no evidence on behalf of the State as evidence close Purshis at Exhs. 87 and 98 were tendered. 11. The claimants had also relied upon certified copy of award at Exhs. 68 and 79 and E Statement at Exhs. 69 and 71, including certified copy of judgment in LAR No.LAR No.551 of 1989 and LAR No.547 of 1996 produced at Exhs.13 and 82 of the record. The sale instances at Exh.73 and 75 were produced. 19 12. The purpose of the acquisition in the present case plays an important role. It was for rehabilitation of the village, nearby the already existing village. This naturally established the proximity and potentiality of the different fields owned by the claimants, subject of acquisition. The claimants canvassed, the market price of acquired land was Rs.1,00,000/- (Rs.one lac) per year while the Land Acquisition Officer awarded compensation at the rate of Rs. 12,000/- per acre. Before the learned Judge, no evidence from claimant was adduced in the form of document to show exact or proximate income or yield derived from said fields. However, Exhs. 14 to 67 could establish that the lands were under cultivation but they were fertile non irrigated lands. 13. The sale deed established through PW 1, attesting witness Vyankat, is in respect of a property admeasuring 8 R, situate at Umarga-Latur Road and it was a small piece of land sold virtually as a plot. The purchaser, indeed, got it for erecting the house. 14. The sale deed at Exh.75, though for 1 H. 36 R., fetched a price of Rs.1,79,500/-, it was equipped with a well with 50 per cent share in the well water situate adjoining to Malwat Shiv. 20 There is no controversy that the sale deeds are prior to the dates of notification under Section 4 of Land Acquisition Act. 15. The Land Acquisition Officer had in the award formulated groups of the lands based on the land revenue which exercise indeed was incorrect. The lands were from Yelwat, Killari and Karla. The Land Acquisition Officer awarded Rs.22,800/- per Hectare for the property at Yelwat in Group I, in Group II, at the rate of Rs.28,000/-, in Group III at the rate of Rs.30,000/-. For the land in Group No.I of village Killari, he has fixed the compensation at Rs.32,000/- per hectare and the maximum at Rs.36,000/-. In Group I of village Karla the Land Acquisition Officer has considered 20 sale instances and fixed the price at Rs.22,000/- per Hectare and the upper limit at Rs.30,000/- per Hectare, though the Government had suggested Rs.34,000/-. 16. Learned Reference Court recorded, the Special Land Acquisition Officer has not considered properly the sale instances, he has not appreciated any sale instance but simply relied upon Government directions and suggestions to quote the prices of the acquired property. 17. The learned Judge found that the sale instance produced by the claimants being of a 21 rate more than what the Special Land Acquisition Officer has fixed, however, according to him, they are not showing the exact value. Therefore, he has to make a guess work. 18. It is apparent, the lands under acquisition though were used for agricultural purposes, they had non agricultural potentiality, being in proximity to the Gram Pachayat with electricity facilities and facilities for education. It is not far off from taluka place. The land under acquisition being for rehabilitation were on the road side. The learned Judge, though he had two sale instances, was constrained to keep it on guess work and doubled the same as shown earlier. 19. The judgment produced at Exh.13 before the learned Reference Court was in respect of compensation awarded based on non agricultural potentiality of the property on square feet. In another judgment at Exh.82, it was of a different award. The Court is bound to have reference to comparable sale instances and to have an average price fixation. The guess work is permissible only in the event if the Court is crippled. 20. In the matter of Hans Raj Sharma Vs. Collector, Land Acquisition, Doda ( AIR 2005 SC 1136), the Apex Court observed, 22 " It was recognized that although fixing of the market value involves a certain amount of intelligent guess work on the part of the court, the element of speculation could be reduced to minimum if the following principles are kept in mind with reference to comparable sales: (i) The sale is within a reasonable time of the date of notification under Section 4(1); (ii) It should be a bona fide transaction ; (iii) It should be of the land acquired or of the land adjacent to the land acquired; and (iv) it should possess similar advantages." 21. In Ravinder Narain and another Vs. Union of India ( (2003) 4 SCC 481), it is observed in paragraph no.8, as under: "8. In the case of Suresh Kumar v. Town Improvement Trust, Bhopal (1989 (1) SVLR (C) 399) in a case under the Madhya Pradesh Town Improvement Trust Act, 1960 this Court held that the rates paid for small parcels of land do not provide a useful guide for determining the market value of the land acquired. While determining the market value of the land acquired, it has to be correctly determined and paid so that there is neither unjust enrichment on the part of the acquirer nor undue deprivation on 23 the part of the owner. It is an accepted principle as laid down in the case of Vyricherla Narayana Gajapatiraju v. Revenue Divisional Officer, (AIR 1939 P.C. 98) that the compensation must be determined by reference to the price which a willing vendor might reasonably expect to receive from the willing purchaser. While considering the market value disinclination of the vendor to part with his land and the urgent necessity of the purchaser to buy it must alike be disregarded. Neither must be considered as acting under any compulsion. The value of the land is not to be estimated as its value to the purchaser. But similarly this does not mean that the fact that some particular purchaser might desire the land more than others is to be disregarded. The wish of a particular purchaser, though not his compulsion may always be taken into consideration for what it is worth. Section 23 of the Act enumerates the matters to be considered in determining compensation. The first criterion to be taken into consideration is the market value of the land on the date of the publication of the notification under Section 4(1). Similarly, Section 24 of the Act enumerates the matters which the Court shall not take into consideration in determining the compensation. A safeguard is provided in Section 25 of the Act that the amount of compensation to be awarded by the Court shall not be less than the amount awarded by the Collector under Section 11. Value of the potentiality is to be determined on such materials as are available 24 and without indulgence in any fits of imagination. Impracticability of determining the potential value is writ large in almost all cases. There is bound to be some amount of guess work involved while determining the potentiality." Keeping aforesaid principles of law in view, I feel that on the basis of instances of sale at Exhs. 73 and 75, tendered by the claimants and also considering the sale deed at Exh.75 to be in respect of an irrigated land, situated at a distance of 1000 feet away from the acquired property, the time lag between the sale deed at Exh.75 and the notification under Section 4 of the Land Acquisition Act, and the award, the claimants are entitled to an enhancement at the rate of Rs.1121/- per R., irrespective of the nature of the agricultural fields, either situate at village Killari or village Karla or Yelwat or it is abutting the road or little away from the road. 22. All the appeals are partly allowed. The State to pay enhanced compensation in respect of the lands, subject matter of acquisition and subject matter of present appeals at the rate of Rs.1121/- per R. (at the rate of Rs.44,840/- per acre ( at the rate of Rs.1,12,100/- per Hectare). Other statutory benefits awarded by the learned Reference Court remain unaltered. The appellants 25 are entitled for the statutory benefits in terms of the enhancement indicated here-in above. No costs. (K.U.CHANDIWAL) JUDGE ... agp/1002-06fagr