SM 1 239.fa.659.92 IN THE HIGH COURT OF JUDICATURE OF BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 659 OF 1992 The State of Maharashtra (At the instance of the Special Land Acquisition Officer, Upper Godawari Project, Nashik.) ...Appellant Versus Trimbak Bhau Salade, since deceased through his legar heirs: 1A. Eknath Trimbak Salade, Son, age – 42 years. 1B. Damodar Timbak Salade, Son, age – 70 years. 1C. Namdeo Trimbak Salade, Son, age – 68 years. 1D. Balasaheb Trimbak Salade, Son, age – 66 years. 1E. Shivaji Trimbak Salade, Son, age – 45 years. 1F. Govind Trimbak Salade, Son, age – 42 years. 1G. Rangnath Trimbak Salade, Son, age – 38 years. All residing at Vadner-Bhairav, Taluka – Chandvad, District - Nashik ...Respondents ____________ Mr. A. R. Patil, AGP for the Appellant. None for the Respondents. SM 2 239.fa.659.92 CORAM: A. S. OKA, J. DATED : 23 RD JUNE, 2011. ORAL JUDGMENT: Heard learned AGP appearing for the Appellant. None appears for the Respondents, though the notice is served. The challenge in this Appeal is to an award made under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as “the said Act”) passed by the learned Joint District Judge, Nashik on 15 th November, 1991. The acquisition relates to the land admeasuring 34 Ares situated at village Vadner-Bhairav, Taluka-Chandvand, District – Nashik. The acquisition was for the purpose of Godavari right canal. The Notification under Section 4 (1) of the Act was issued on 21 st July, 1981; and the award under Section 11 of the said Act was made on 28 th February, 1983 by which, the market value was offered at the rate of Rs.4,500/- per Hectare. The Respondent did not accept the award and at his instance, a reference was made under Section 18 of the said Act. The reference was partly allowed by the impugned award. The SM 3 239.fa.659.92 Reference Court came to the conclusion that out of acquired land, an area of 10 Ares was 'Bagayat', which was well irrigated. For the said portion of the acquired land, market value was fixed at the rate of Rs.60,000/- per Hectare. 2. The submission of the learned AGP appearing for the Appellant is that the sale instances relief upon by the Reference Court are not proved to be the instances in respect of comparable lands and hence, the Respondents have failed to discharge the burden on him to prove that the market value of the acquired land fixed by the Land Acquisition Officer was inadequate. None appears for the Respondents. 3. I have given careful consideration to the submissions. The Respondents examined one Shivram Bapu Nikhade, who was the purchaser of the land admeasuring 33 Ares under the Sale dated 9 th February, 1978 (Exhibit-23). He stated that he purchased the land at a price of Rs.20,000/-. It must be noted here that the said witness in his examination in-Chief has stated that on account of Fragmentation of Holding Act, no other person was in position SM 4 239.fa.659.92 to purchase the said land. He stated that as the vendor was in need of money, he sold the land to him. Thus, this is a case of distress sale and it cannot be said that the value reflected from the said transaction was the one which a prudent and bonafide purchaser would have offered. Therefore, the sale instance will have to be kept out of consideration. 4. Another witness Ashok Baburao Shinde was examined to prove the Sale Deed dated 28 th February, 1974 which was purchased by his father. The area of land subject matter of the Sale Deed is 30 Ares. In the cross examination, he admitted that the land subject matter of the Sale Deed was surrounded by his own lands. He also admitted that he accepted the price which was quoted by the Vendor. Thus, the property subject matter of the Sale Deed was a special property for the said purchaser. Therefore, the value reflected from the Sale Deed cannot be treated as the real market value. 5. The learned Trial Judge has completely ignored the aforesaid important aspects brought on record. The well settled SM 5 239.fa.659.92 principle is that the market value is the one which will be offered by a bonafide and prudent buyer. Enhancement in market value has been granted only on the basis of aforesaid two Sale Deeds. There is no other evidence adduced by the Respondents. 6. Hence, the impugned judgment and award will have to be quashed and set aside. However, it must be noted that the possession of the acquired land appears to have been taken over on 8 th December, 1979, i.e., prior to the Notification under Section 4(1) of the said Act. It will be open for the Respondents to adopt appropriate proceedings for grant of compensation/rental compensation from the date of possession till the date which is set out in the Government Resolution dated 1 st December, 1972. Hence, I pass the following order: ORDER (i) Subject to liberty granted as aforesaid, the judgment and award dated 15 th November, 1991 is quashed and set aside; and the Land Acquisition Reference No. 111/85 stands SM 6 239.fa.659.92 dismissed. (ii) Appeal is allowed, with no order as to costs. (A. S. OKA, J.)