(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. FIRST APPEAL NO. 577 OF 1993 Santosh Rambhaji Pagare, Age : 39 years, Occupation : Agriculture, .. Appellant R/o. Pathardi, (Original District : Ahmednagar. claimant) versus The State of Maharashtra .. Respondent (Through Special Land Acquisition (Original Officer No.12), Ahmednagar. opponent) ....................... Mr. V.S. Bedre, Advocate, for the appellant. Mrs. B.R. Khekale, Assistant Government Pleader, for the respondent. ........................ CORAM : K.U. CHANDIWAL, J. DATE : 30TH MARCH 2010 (2) ORAL JUDGMENT : 1. Heard learned Counsel appearing for the appellant and the learned Assistant Government Pleader appearing for the respondent. 2. The First Appeal is admitted on 13th April 1994. 3. Agricultural field of claimant and few others was subject of acquisition for the purpose of percolation tank at village Dhamangaon (Taluka : Pathardi, District : Ahmednagar). In pursuance to notification under Section 4, declaration under Section 6 of the Land Acquisition Act, 1894, award under Section 12(2) was declared on 8-6-1988. It was served on the land holders on 30th June 1988. The reference was filed on 22nd July 1988. 4. The claimant pointed before the learned reference Court, that the acquired land had non-agricultural potentiality. He has demonstrated the same to the learned Judge by putting on record papers of Land Acquisition Reference No. 215/1990 pertaining to adjoining land Gut No. 887 of Dhamangaon, decided by the same court on 2nd May 1990. In the said judgment of Land Acquisition Reference No. 215/1990, the learned reference Court concluded that land Gut No. 887 had (3) non-agricultural potentiality. The claimant (appellant) canvassed that land Gut No. 881 is adjoining to the said land. The development plan of Pathardi town was tendered at Exhibit 105. At Exhibit 20, certificate issued by Deputy Engineer, M.I., Pathardi, was tendered. 5. The learned reference Court accepted that the adjacent land from the adjoining Gut No. 887 had non- agricultural potentiality. 6. The evidence illustrate that Dhamangaon to Pathardi road is adjacent to Survey Nos. 346 and 340. Pathardi to Manik Doh road passes by east side of land Survey No. 346. The locality Sainathnagar is at a distance of 100 to 125 metres from Dhamangaon tank. Police Station, court building, Panchayat Samiti quarters, market, Municipal office and residential accommodations were within the circumference of around 400 metres from the acquired land. The learned Judge accepted, the cross examination did not bring any disbelieving feature to the evidence on the side and dimensions. 7. The learned Judge accepted that in Land Acquisition Reference No. 215/1990, he has held that the land having Survey No. 346 (Gut No. 887) of Dhamangaon, owned by Idhate, had non-agricultural potentiality, while Survey No. 340 (4) (Gut No. 881) is adjoining to the said land. He also accepts, indeed the user of the land at the material time was agriculture and particularly at the time prior to Section 4 notification. He concluded that it is established by cogent and satisfactory evidence that both the lands Survey No. 346 (Gut No. 887) and Survey No. 340 (Gut No. 881) are surrounded by various Housing Societies, N.A. plots converted into residential user. Consequently, the learned Judge accepts, the land acquired had non-agricultural potentiality. In spite of such eventualities, the learned Judge reached to the conclusion of fixing the additional price of the acquired land at Rs. 1,43,040/- for 2 Hectares, which indeed was at the rate of Rs. 75,000/- per hectare as he made deductions of the compensation awarded by the Special Land Acquisition Officer. 8. To prove all the above referred events, in all, seven witnesses were examined. One Mr. Bhausaheb Mardane, working as a Clerk in Municipal Council, Pathardi, is examined to give description and non-agricultural potentiality of the respective properties. The evidence of Baburao Kothule, Chairman of Housing Society, having purchased 1 Hectare 32.79 R land, by sale deed (Exhibit 12), was produced which showed the purchase to be for Rs. 1,12,810/-. 9. The land reference of Bhausaheb Mardane, produced (5) in the form of certified copy in Land Acquisition Reference No. 215/1990 is at Exhibit 41. In Land Acquisition Reference No. 215/1990 (Satish Kashinath Idhate Vs. State of Maharashtra), the learned Judge in paragraph 18 of the judgment, referred to the evidence of Bhausaheb Mardane, Clerk from the office of Municipal Council, Pathardi, to describe non-agricultural potentiality. In the said proceedings, one Sudhir Fale was also examined to prove layout of land Survey No. 346. In the matter of Satish (Land Acquisition Reference No. 215/1990), the compensation for land Survey No. 887, 1 Hectare 8 Are, was at Rs. 3,73,310/-. The break up comes to Rs. 3,500/- per Are. Though one may find this as an exorbitant figure of enhancement by the learned Judge, however, concession is required to be given, as land acquired is a big piece of 2 Hectares, hence, the claimant in the present case, is entitled for staking claim at the rate of Rs. 1,50,000/- per Hectare (Rupees One Lac Fifty Thousand per Hectare), as against the amount of Rs. 75,000/- per Hectare determined by the learned reference Court. 10. In the result, the appeal is allowed. The award, under challenge of the reference Court, is modified. It is modified from Rs. 75,000/- per hectare to Rs. 1,50,000/- per hectare. The compensation awarded by the Special Land Acquisition Officer shall be deducted. The other statutory benefits, as awarded by (6) the learned Judge, vide judgment and award dated 30th April 1993, remain unaltered. No costs. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/fa577