1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.568 OF 1992 Sureshchand s/o Kachardas Bakliwal, Age-50 years, R/o-Shahganj, Aurangabad. .... APPELLANT. VERSUS The State of Maharashtra, Through Land Acquisition Officer, Aurangabad. .... RESPONDENT. ... Mr. R.R. Mantri Advocate for the Appellant. Mr. M.L. Dharashive A.G.P. for Respondent. ... CORAM: K.K. TATED, J. DATE : 30TH JUNE, 2009. ORAL JUDGMENT: 1. Heard Mr. Mantri, learned counsel for the 2 Appellant and Mr. Dharashive, learned A.G.P. for the Respondent. 2. Present First Appeal preferred by original claimant against the Judgment and award dated 18th January, 1992 passed by IInd Additional District Judge, Aurangabad in Land Acquisition Reference No.53 of 1986. A few undisputed facts of the matter are as under: . The Special Land Acquisition Officer issued notification under Section 4 of the Land Acquisition Act on 16th April, 1981 for acquiring Appellant's - original claimant's land of 00.60 Hector from Survey No.27 for construction of Aurangabad - Beed diversion road. Thereafter the Appellant filed Regular Civil Suit No.684 of 1982 in the Court of Civil Judge, Senior Division, Aurangabad for perpetual injunction restraining the State of Maharashtra, through the Chief Secretary, Government of Maharashtra, Sachivalaya, Mumbai from carrying out the construction of Aurangabad - Beed diversion road. In the said suit, the Appellant prayed that: 3 "The suit of the plaintiff be decreed with costs and the defendant be restrained from continuing with the work of construction of Aurangabad - Bhir Diversion Road as per mark-out land on spot. Necessary injunction against all the concerned authorities may be granted. Any other suitable relief to which plaintiff is found entitled may be awarded." 3. In the said suit, Civil Judge, Senior Division, Aurangabad passed order directing both the parties to maintain status-quo till the hearing and final disposal of the said suit. Thereafter the Respondent decided to acquire only 35 Gunthas of land and therefore notice under Section 6 of the Land Acquisition Act issued on 18th October, 1984 for 35 Gunthas of land from Survey No.27 belonging to the Appellant. After following due process of law, the Special Land Acquisition Officer declared award dated 12th March, 1986 and awarded compensation in respect of the acquired land at the rate of Rs.580/- per R. Thereafter the Appellant filed Reference under Section 4 18 of the Land Acquisition Act dated 2nd May, 1986 claiming enhanced compensation in respect of the acquired land. The said Reference came to be amended as per Court's order dated 18th July, 1991 whereby the Appellant claimed compensation in respect of acquired land at the rate of Rs.9.30 Paise per sq. ft. In meanwhile, the Regular Civil Suit No.684 of 1982 filed by the Appellant, came to be settled and parties filed their compromise deed. As per compromise deed, it was agreed between the Appellant and the acquiring body that acquiring body agreed to pay the compensation in respect of 18 R's of land at the rate of Rs.9.30 Paise per sq. ft. Para 5 of the said compromise deed dated 1st February, 1988 Exhibit 38, reads as under: "The total area required for road as per approved lay out is 45 R. The area out of which the land measuring 18 R. will be paid as per the valuation given by the Collector, Aurangabad vide his Confidential Letter No.1988/PA-I/013 dated 14-1-88 by end of February, 1988, at the rate of Rs.9.30 per Sq. ft. or Rs.100.10 per Sq. m. as reported vide letter mentioned above for 18 R." 5 4. In view of the compromise between the parties in respect of 18 R's of land, acquiring body took possession of acquired land on 7th March, 1988. Thus, the Reference Court decided the market value of remaining 27 R's of land only. 5. Learned counsel appearing on behalf of the Appellant - original claimant submitted that the Reference Court erred in coming to the conclusion that compensation awarded by the Special Land Acquisition Officer in respect of acquired land at the rate of Rs. 580/- per R is as per market rate prevailing on the date of issuing notification under Section 4 of the Land Acquisition Act i.e. 16th April, 1981. Learned counsel for the Appellant further submitted that the Reference Court erred in dismissing the Reference filed by the Appellant. 6. Learned counsel for the Appellant further submitted that the Court below erred in law in not accepting the contention of the Appellant that the 6 Appellant is entitled, compensation at the rate of Rs. 9.30 Paise per Sq. ft. at which rate compensation was paid by the Respondent State in Regular Civil Suit No. 684 of 1982 for a portion of 18 R of land of the Appellant out of the total acquired portion of Survey No.27. He further submitted that the Court below failed to understand that out of the notified land of 60 R's, the acquiring body has taken 45 R's of land by the compromise filed in the Court in Regular Civil Suit No.684 of 1982 but made payment for 18 R's of land at the rate of Rs.9.30 Paise per Sq. ft. leaving the remaining portion of land unpaid. As such the Appellant is entitled to get payment for the remaining 27 R's of land also at the rate of Rs.9.30 Paise per Sq. ft. Learned counsel for the Appellant submitted that considering the compromise arrived between the parties in Regular Civil Suit No.684 of 1982 and the sale deed dated 7th March, 1988, the Reference Court ought to have awarded compensation in respect of acquired land at the rate of Rs.9.30 Paise per Sq. ft. 7. On the other hand, learned A.G.P. Mr. M.L. Dharashive appearing on behalf of the Respondent State 7 submitted that the Reference Court has considered the documents on record and deposition of both the witnesses and rightly held that Appellant failed to produce any cogent evidence to show that he is entitled to enhanced compensation in respect of the acquired land. He further submitted that the compromise dated 1st February, 1988 at Exhibit 38 was arrived between the acquiring body and the Appellant herein above and therefore the same cannot be considered as market value of the acquired land. He further submitted that in the present case, market value of the acquired land has to be determined as on the date of issuing notification under Section 4 of the Land Acquisition Act dated 16th April, 1981, whereas in the compromise deed, the acquiring body considered the market value of the acquired land in the year 1988. Therefore, the learned A.G.P. submitted that there is no substance in the present Appeal and the same is liable to be dismissed with costs. 8. It is to be noted that when the matter was argued on 29th June, 2009, learned A.G.P. was directed to find out from the office of the Special Land 8 Acquisition Officer whether the other land owners also filed a Reference under Section 18 of the Land Acquisition Act. From the award dated 12th March, 1986 declared by the Special Land Acquisition Officer it is clear that the Respondents acquired the land of more than 20 land owners for the same project. Learned A.G.P. shown his inability to state whether the other land owners have also filed Reference under Section 18 of the Land Acquisition Act. The Special Land Acquisition officer Mr. R.S. Baviskar who is present in the Court, is also not in a position to state whether other land owners also filed Land Acquisition References in respect of their acquired lands. For want of information from the learned A.G.P. it is not possible to verify whether the other claimants also filed Land Acquisition References in respect of present project. 9. Learned counsel appearing on behalf of the Appellant pointed out that the Reference Court erred in coming to the conclusion that Appellant is not entitled to enhanced compensation in respect of the acquired land on the basis of statement of sale 9 instances as referred by the Special Land Acquisition Officer in the award dated 12th March, 1986. He further submitted that the Reference Court erred in coming to the conclusion that statement of sale instances mentioned in the award can be considered as basic for working out market value. 10. It is true that the Reference Court relied on the statement of sale instances mentioned in the award passed by the Special Land Acquisition Officer and held that the Appellants are not entitled for additional compensation in respect of their acquired land. The Apex Court in the matter of Chimanlal Hargovinddas vs. Special Land Acquisition Officer, reported in AIR 1988 S.C. Page 1652, held that the material relied on by Acquisition officer in his award, cannot be relied upon by the Reference Court for determining the market value of the acquired land unless same is produced and proved. Head Note A of the said Authority, reads as under: "(A) Land Acquisition Act (1894), S.18 - Acquisition - Reference - Disposal of, by Court - Reference is not appeal 10 - Material relied on by Acquisition Officer in his award - Cannot be relied upon unless same is produced and proved." 11. Similar view is taken by our High Court in the matter of State of Maharashtra and another vs. Chandrakant @ Pomaji Vasudev Somshetti (since deceased by LRs) and others, reported in A.I.R. 1991 Bombay, Page No.245. Therefore, the observations of the trial Court in Para 13 of the impugned Judgment are not correct. The reference Court cannot rely on the statement of sale instances mentioned in the award and the same cannot be considered as basic for working out market value unless and until it is produced and proved before the trial Court. 12. Learned counsel for the Appellant further submitted that the Reference Court ought to have determined the market value of the acquired land at the rate of Rs.9.35 Paise on the basis of sale deed executed by the acquiring body in respect of 18 R's of land from the same Survey i.e. Survey No.27, dated 7th 11 march, 1988. It is to be noted that except the compromise deed dated 1st February, 1988 at Exhibit 30 and xerox copy of sale deed dated 7th March, 1988, the Appellant has not produced any other cogent evidence on record to show that the Appellant is entitled to enhanced compensation in respect of the acquired land. 13. Learned A.G.P. for Respondent State submitted that as the Appellant failed to produce any cogent evidence to show that he is entitled to enhanced compensation in respect of acquired land, the present Appeal is liable to be dismissed with costs. 14. In any case, the acquiring body itself compromises with the Appellant for determining the market price of 18 R's of land from the same Survey Number. Though the said compromise took place on 1st February, 1988 and the sale deed came to be executed on 7th March, 1988, the same can be considered for determining the market value of the acquired land. The Apex Court in the matter of Shakuntalabai (Smt.) and others vs. State of Maharashtra, reported in (1996) 2 Supreme Court Cases, Page 152 held that evidence of 12 the market value of the acquired land available and admitted by the claimant, then the same is best piece of evidence for determining the market value of the acquired land. Para 4 of the said Judgment read as under: "4. The question, therefore, is whether the High Court has committed any manifest error of law or had applied any wrong principle of law in determining the compensation and whether its failure to consider Exs. 38 and 44 does make any difference. Having given our consideration to the contention of Shri Mohta, we think that the High Court had not committed any manifest error of law or omitted to apply any correct principle of law. It is seen that if there is evidence or admission on behalf of the claimants as to the market value commanded by the acquired land itself, the need to travel beyond the boundary of the acquired land is obviated. The need to take into consideration the value of the lands adjacent to the acquired land or near about the area which possessed same potentiality to work out the prices fetched therein for 13 determination of market value of the acquired land would arise only when there is no evidence of the value of the acquired land. In a case where evidence of the value of the acquired land itself is available on record, it is unnecessary to travel beyond that evidence and consider the market value prevailing in the adjacent lands. As stated earlier, though Exs. 38 and 44 might command different market value to the land situated in approved layouts, since the appellant himself had purchased the selfsame acquired lands in 1957 at Rs.10,000 for the entire 20 acres of land, the High Court was right in its view to consider the very same evidence to determine the compensation to the acquired land. On the assessment of the increase in the value by 10 times, the High Court had accepted that assessment of the appellant himself as PW9 and upheld the award of the Land Acquisition Collector since it reflects the same price as granted in the award under Section 11." 15. Considering these facts, now I have to decide whether the Appellant is entitled to enhanced rate of 14 market value in respect of acquired land. Considering the compromise deed dated 1st February, 1988 at Exhibit 30 and the sale deed dated 7th March, 1988 I hold that the Appellant is entitled enhanced compensation in respect of acquired land. The notification under Section 4 of the Land Acquisition Act issued on 16th April, 1981 and the compromise arrived between the parties in Regular Civil Suit No. 684 of 1982 on 1st February, 1988, by which the Appellant received market value in respect of 18 R's of land at the rate of Rs.9.30 Paise per Sq. ft. Therefore, I hold that Appellant is entitled to compensation in respect of acquired land at the rate of Rs.2/- per Sq. ft. because the compromise took place after 7 years from the date of Notification under Section 4 of the Land Acquisition Act. For determining the market value as on the date of notification under Section 4 of the Land Acquisition Act, 10% amount per year has to be deducted upto the date of issuing notification under Section 4 of the Land Acquisition Act. Therefore, I hold that the Appellant is entitled compensation in respect of acquired land at the rate of Rs.2/- per Sq. ft. In 15 addition to the market value of the acquired land, Appellant is entitled to additional benefits as provided under the amended provisions of the Land Acquisition Act i.e. 30% solatium, 12% component and interest. All these benefits are entitled to the Appellant from 1st February, 1988 because till that time there was status-quo order passed by the Civil Court in Regular Civil Suit No.684 of 1982. Hence First Appeal is partly allowed as under: O R D E R A) The Appellant is entitled compensation in respect of acquired 27 R's of land at the rate of Rs.2/- per Sq. ft. B) The Appellant is entitled to additional benefits as per the amended provisions of the Land Acquisition Act viz. 30% solatium, 12% component and interest, from 1st February, 1988 i.e. from the date of filing compromise deed 16 in Regular Civil Suit No.684 of 1982. C) No order as to the costs. [K.K. TATED, J.] asb/JUN90/fa568.92