1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.338 OF 1993. Raghunath Bhagwant Deshmukh, (deceased through legal heirs) 1. Smt.Rajani Raghunath Deshmukh, Age 55 years, Occ.Household work, (widow of the deceased appellant) 2. Madhav Raghunath Deshmukh, Age 22 years, Occ.Agri., & Service, (son of the deceased Apellant) 3. Shriram Raghunath Deshmukh, Age 28 years, Occ.Agri. & Service, All residents of at & Post Savedi, Tal. and Dist. Ahmednagar. ... Appellants. Versus 1. The State of Maharashtra 2. Maharashtra State Road Transport Corporation, Bombay Central, Bombay at Bombay, through it's Divisional Controller, Ahmednagar Division, Sarjepura, Ahmednagar, At & District Ahmednagar. ... Respondents. 2 ... Mr.A.B.Gatne, advocate for the appellants. Mr.S.D.Kaldate, A.G.P. for the Respondent No.1. Mr.M.K.Goyanka, advocate for the Respondent No.2. ... CORAM : V.R.KINGAONKAR,J. Date : 09.12.2009. ORAL JUDGMENT 1. This appeal is directed against judgment and award rendered by the 2nd Joint Civil Judge (Senior Division), Ahmednagar in Land Reference Case No.81/1988, whereby the Reference Application was partly allowed and the Respondent was directed to pay enhanced compensation to the appellant on the basis of market value determined at rate of Rs.3,00,000/- (Rupees three lacs) per hectare. 2. The deceased appellant owned agricultural land bearing S.No.283/1/8, situated at Savedi which is in the outskirts of city of Ahmednagar. There is no dispute about the fact that the Respondent acquired 34 gunthas area out of the said land for S.T. Bus Depot and construction of staff quarters for the MSRTC. The 3 Respondent issued notification U/s 4 of the Land Acquisition Act on 6.6.1984. It was followed by notification U/s 6 of the said Act. The SLAO considered the relevant sale instances in order to determine the market value of the acquired land. It is an admitted fact that the acquired land was being used for agricultural purpose when it was taken over by the Respondent - State. The award rendered by the SLAO was challenged by the deceased appellant vide the Land Reference Application U/s 18 of the Land Acquisition Act. The appellant sought compensation at the rate rate of Rs.3,60,000/- (Rupees three lacs sixty thousand) per acre. 3. The appellants' case before Reference Court was that the acquired land was having potential value for non-agricultural use. The acquired land was of rich soil. The other sale instances were not properly considered by the SLAO. He contended that the acquired land is surrounded by the Industrial area and the residential area and, therefore, has much potentiality for conversion to non-agricultural 4 use. He submitted that he was entitled to seek enhanced compensation of Rs.2,14,812/- (Rupees two lacs fourteen thousand twelve) on the basis of market value which cold be determined at rate of Rs.3,50,000/- per acre. 4. The Respondent resisted the application on various grounds. According to the Respondent, the SLAO properly classified the land for determination of the market value. It was denied that the acquired land was having N.A. potentiality. It was contended that the acquired land is at a distance of about 6/7 Kms. from the city area of Ahmednagar. It was asserted that the acquired land was being used only for cultivation. Consequently, the Respondent sought dismissal of the Reference Application. 5. The parties went to trial over issues struck below Exh.5. The appellant adduced certain evidence in support of his claim, including his own testimony. The Respondent did not adduce any oral evidence and relied upon the intrinsic observations appearing from the award 5 itself. 6. Mr.Gatne, learned advocate would submit that the sale instance pertaining to sale of 5 Ares land out of Gat No.183/2A on 2.8.1985 and the version of Yadavrao Wakle in relation to such sale transaction could not be discarded by the Reference Court. He would point out that the acquired land is admittedly situated within the limits of village Savedi which is in the proximity of Nagar-Manmad Highway. He points out that the Reference Court came to the conclusion that the purpose of acquisition itself indicated potentiality of use of the acquired land for residential and office buildings. It is argued that the Reference Court committed patent error while discarding the sale instances in respect of the lands Gat Nos.158/1 and 158/2 which were for areas of 7 gunthas and 8 gunthas respectively, alienated at the rate of Rs.9,00,000/- (Rupees Nine lacs) per hectare. He would submit that the NA potentiality of the acquired lands could not be ignored and proper comparison was required to be made by the Reference Court. He seeks to rely 6 on certain observations in "Dadoo Yogendranath Singh and others Vs. The Collector, Seoni" AIR 1977 Supreme Court 1128 and "Adusumilli Gopalkrishna Vs. Spl.Deputy Collector (Land Acquisition)" AIR 1980 Supreme Court 1870. As against this, the learned A.G.P. points out that the sale instances in relation to Gat No.158/1 and Gat No.158/2 are not duly proved by examining either the vendor or vendee and, therefore, there could not be comparison with the said sale instances. He would further submit that the Reference Court has duly considered relevant factors while determining the market value of the acquired land. He invited my attention to the observations of "Special Land Acquisition Oficer, Karnataka Housing Board and others Vs. P.M.Mallappa and others" (1997) 4 Supreme Court Cases 429. The Apex Court held, in the given case, that potential value of the acquired land must be determined as on the date of the notification and not after subsequent development. 7. There can not be duality of opinion that 7 probable market value of the acquired land is required to be determined as per juxta-position of the market with reference to period of acquisition. So, the rate of lands after the notification can not be considered for the purpose of comparison. It is of common knowledge that after acquisition of the land for public purpose, there is assurance of development in the contiguous area. Obviously, the prices of adjoining properties are likely to shoot-up after the acquisition. 8. Let it be noted that the appellant did not examine the vendor or vendee in respect of the sale instances pertaining to Gat No.158/1 or Gat No.158/2 nor he claimed parity with said sale instances. What emerges from his Reference Application is that he sought compensation at the rate of Rs.3,50,000/- (Rupees three lacs fifty thousand) per acre. As regards the small strip of lands bearing Gat No.158/1 and Gat No.158/2, it may be gathered that the said lands were adjoining the Manmad-Ahmednagar Highway. However, the appellant's land was interiorly 8 located. Obviously, the distance from the Highway is one of the factor which could be considered by the Reference Court. It appears that 23 Ares area out of land Gat No.282/lA adjacent to Ahmednagar-Manmad road was sold at the rate of Rs.1,63,043/- (Rupees one lac sixty three thousand forty three) per acre in October 1983. The Reference Court considered probable increase in the market value pertaining to 1984. The appellant did not place on record the sale deeds in respect of said lands which were acquired. 9. In "Special Deputy Collector and another etc. Vs. Kurra Sambasiva Rao and others, etc." (AIR 1997 Supreme Court 2625), the Apex Court observed : "In the absence of such a sale deed relating to the acquired land, the sale transactions relating to the neighbouring lands in the vicinity of the acquired land. In that case, the features required to be present are : 9 it must be within a reasonable time of the date of the notification; it must be a bone fide transaction; it should be a sale of land similar to the land acquired or land adjacent to the land acquired; and it should possess similar advantageous features. These are relevant features to be taken into consideration to prove the market value of the acquired land as on the date of the notification published U/s 4(1) of the Act. This would be established by examining either the vendor or the vendee. It is is proved that they are not available, the scribe of the document may also be examined in that behalf. Section 51-A of the Act only dispenses with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take 10 long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes vis-a-vis this land. The marking of the certified copy is per se is not admissible in evidence unless it is duly proved and the witnesses, viz., the vendor or the vendee, are examined. This principle has been repeated in a catena of subsequent decisions of this Court." 10. It is needless to say that mere production of a certified copy of the sale deed or copy of the index will not suffice the purpose. The acquired land is not in the proximity of Ahmednagar-Manmad Highway. The appellant deposed that land of Yadav Shankar Wagh is adjacent to the acquired land. The sale transaction in respect of the said land of Yadavrao is duly considered by the Reference Court. It appears that said Yadavrao alienated 7 11 gunthas land out of his S.No.211 for consideration of Rs.26,000/- (Rupees twenty six thousand) in favour of one estate agent by name Mr.Mehta. Said Yadav was examined to prove contents of the sale deed (Exh.11) in the context of another Reference Application. It is on the basis of such sale transaction that the Refernece Court awarded compensation at rate of Rs. 3,60,000/- (Rupees three lacs sixty thousand) per hectare. The land of Yadav was alienated at the rate of Rs.3,75,000/- (Rupees three lacs seventy five thousand) per hectare. The location of both the lands and other factors have been considered by the Reference Court. 11. It is true that the Apex Court held that statement of the claimant regarding the sale of lands in immediate vicinity could be considered. In the present case, oral evidence of PW 1 Raghunath (claimant) does not show that he referred to other sale instances except that of Yadav Wagh. 12. The Reference Court came to the 12 conclusion that the land of said Yadav is adjacent to Nagar-Manmad Highway, whereas acquired land of the appellant was away from the said Highway. It was for such reason that the market value of the appellant's land was determined at the rate of Rs.3,00,000/- per hectare. Obviously, this is not a case in which there was no comparable sale instances available and were not considered by the Reference Court. The assessment of the market value by the Reference Court is on the basis of the evidence and comparison of the sale transactions. In view of the relevant circumstances and the findings of facts rendered by the Reference Court, I find it difficult to interfere with the impugned award. This is particularly so when the appellant did not examine either vendor or vendee of the sale transaction relied upon by him. 13. Considering the foregoing reasons, the appeal is dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/fa33893 13