1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.134 OF 1994 Date of decision: 25/3/2010 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/134­94fa 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.134 OF 1994 Shivaji s/o Khanderao Bhosale, Age 35 years, Occupation Agriculture, r/o Bhatagali, Taluka Omerga, District Osmanabad. ...APPELLANT (ORI.CLAIMANT) VERSUS The State of Maharashtra, Through Collector, Osmanabad. ...RESPONDENT ... Mr. P.B.Rakhunde, Adv., h/f Mr.K.B.Bhise, Adv., for the appellant. Mr. S.D.Kaldate, AGP for respondent. ... CORAM: K.U. CHANDIWAL, J. DATE :25.3.2010 *** ORAL JUDGMENT: 1. Heard both the Counsel extensively. By order dt.31.3.1994, the appeal is admitted. 2. The appellant, land holder, feels aggrieved by the judgment and award recorded by the learned Civil Judge, Senior Division, Osmanabad, in LAR No.25/1989, dt.4th May, 1991, 3 branding the same to be inadequate, not in tune with the proximity of the property and also the potential worth thereof. 3. During the course of submission, learned Counsel invited my attention to the order dt.6th Feb.,2009, in First Appeal No.39/1993, relating to the village Bhatangli which is 03 km. away from village Makani. This Court has observed that due to restrictions imposed by the Government at the material time, there could not be sale instances from village Bhatangli and, consequently, they were even not available before the Land Acquisition Officer while drawing the award. 4. Before the learned Reference Court, two sale instances were tendered ­ Exh.29 from village Hasalgunj and Exh.30 from village Nagur. The pattern of crop was referred in 7/12 extract at Exh.27 which the learned Judge, to some extent, found that it was dry land. However, survey No.160 was irrigated land and survey No. 43, according to him, was a dry land. 5. The sale instance at Exh.29 of village Hasalgunj was for two acres, one guntha for Rs. 21,000/­ in the year 1975. The sale instance at Exh.30 of village Nagur was for 96 R. for Rs. 27,000/­ in the year 1983. In the instant case, 4 the publication under Section 4(1) of the Land Acquisition Act was of 1984 while the award is drawn on 15.4.1988. 6. Though the lands referred at Exh.29 and Exh.30 are of different villages, however, it is certain, they are adjoining to each other and are also subject of the same project. The learned Judge has, in the light of above situation, considered those sale instances to fix the market price at the rate of Rs.14,000/­ per acre for irrigated land and Rs.8,000/­ per acre for dry land. 7. First Appeal No.39/1993, refers to other First Appeal No.326/1999, First Appeal No. 38/1993, arising out of the same village Bhatangale and this Court granted compensation @ either Rs.22,000/­ per acre or Rs.17,000/­ per acre. The notification under Section 4 in First Appeal No.326/1999 was of 18.7.1984, while the award was declared on 16.11.1988. The above dates match to the date of notification and also of the award in the instant case. The little difference is insignificant. 8. Since the appellants/claimants were required to produce sale instances of village Bhatangale being faced with ban from the Government owing to project, the sale instances, 5 to which reliance is given by the learned Judge ( Exhs.29 and 30), will not be the sole criteria to reach to the conclusion to pay amount of Rs. 14,000/­ or Rs.8,000/­ per acre. 9. The annual yield from the fields, the close proximity of the property, its potentiality ought to have been considered. Taking survey of the evidence, coupled with earlier judgments, referred above, the appeal, for enhancement, deserves to be allowed and it is allowed. Hence order: ORDER The order of learned Joint Civil Judge, Senior Division, Osmanabad, dt.4.5.1991, is modified from Rs.14,000/­ to Rs.17,000/­ per acre with consequential statutory benefits in the LAR No.25/1989, with costs. (K.U.CHANDIWAL) JUDGE ... agp/134­94fa