1 fa376 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.376 OF 2004 Dnyanu Vishnu Killedar ...Appellant vs. The State of Maharashtra and another ...Respondents Mr.S.M.Kamble for the appellant Mr.A.R.Patil, A.G.P for the respondent CORAM : A.S.OKA,J. DATE : JUNE 17, 2011 ORAL JUDGMENT: 1 Heard learned counsel for the appellant. The appellant is the claimant in a reference under section 18 of the Land Acquisition Act,1894 (hereinafter referred to as the said Act). The challenge is to the Judgment and Award dated 12th November 2003 passed by the District Court in the reference made at the instance of the appellant. 2 The acquisition relates to the land bearing Gat no. 413 admeasuring 85 Ares situated at village Nitwe, Taluka Radhanagari, District Kolhapur. Notification under section 4(1) was issued on 7 th June 1991 and was published on 11 th July 1991. Award under section 11 of the said Act was made on 21st March 1993. Said award was not accepted by the appellant. Therefore, in the reference, a claim for enhancement was made in the market value at the rate of Rs.2500/- per acre. The Reference Court came to the conclusion that the total market value of the acquired land was Rs.1,00,000/-. It must be noted here that under the Award under section 11 of the said Act, total market value of Rs.66,300/- has 2 fa376 been granted. 3 The learned counsel for the appellant submitted that notification under section 4(1) of the said Act was issued on 7th June 1991. But the possession of the acquired land was given on 15th January 1990 to the persons nominated by the State Government. His submission is that in view of the decision of the Apex Court in case of Assistant Commissioner, Gadag Sub Division, Gadag vs. Mathapathi Basavannewwa and others (AIR 1995 SC 2492), interest at the rate of 12% p.a ought to have been granted from the date of possession i.e from 15 th January 1990. The second submission is that the appellant had relied upon the sale instance dated 11 th December 1992 at Exh.47 in respect of the comparable land which reflects market value of more Rs.1300/- per guntha. He invited the attention of the Court to the oral evidence and in particular evidence of the vendor under the said sale deed. He submitted that though the said sale deed is post notification sale deed, difference between the date of the sale deed and date of notification under section 4(1) is only 1 and half year. He therefore, submitted that the market value fixed by the Reference Court is required to be enhanced. The learned A.G.P supported the impugned Judgment and relied upon the decision of Apex Court Court in case of R.L. Jain (D) by Lrs. DDA & Ors.(2004 AIR SC 1904). 4 I have given careful consideration to the submissions. The decision relied upon by the learned counsel for the appellant in case of Assistant Commissioner, Gadag (supra) has been specifically overruled by the Judgment of the larger Bench of the Apex Court in case of R.L.Jain (supra). The Apex Court held that interest cannot be granted either under section 3 fa376 23(1-A) or 34 of the said Act for the period prior to the date on which the notification under section 4(1) of the said Act was issued in as much as the expressions such possession or possession in the aforesaid sections make a reference to possession taken over in accordance with section 16 or 17 of the said Act. Therefore, this submission of the Appellant cannot be accepted. However, the Appellant can always adopt appropriate proceedings for recovery of damages/ lease rent for the period between the date of possession and the date of Award under section 11 of the said Act in accordance with the policy of the State Government. 5 As far as his second submission is concerned, the sale deed at Exh.47 has been executed nearly after one and half years from the relevant date. The area of the property subject matter of the sale deed is 38 ares. The area of the acquired land is 85 ares. Even if the market value of the acquired land was to be determined on the basis of the said sale instance, which is post notification sale, a deduction was required to be made for bringing down the price as of the date of notification and on account of largeness of the area of the acquired land. The market value fixed by the Reference Court is approximately Rs.1170/- per are. The said sale instance discloses the market value of approximately Rs.1380/- per are. Therefore, it is not possible to find fault with the market value fixed by the Reference Court. 6 There is no merit in the appeal and subject to liberty granted in paragraph 4 above, the same is dismissed with no order as to costs. 4 fa376 JUDGE