(1) FA. 212.1995 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 212 OF 1995 The State of Maharashtra through the Special Land Acquisition Officer, Jalgaon .. Appellant VERSUS Shri Madhukar Rajaram Patil Age : 45 years, Occu.: Agri., R/o : Nimbol, Tal. : Raver, Dist. : Jalgaon .. Respondent WITH CIVIL APPLICATION NO. 4919 OF 1996 IN FIRST APPEAL NO. 212 OF 1995 The State of Maharashtra through the Special Land Acquisition Officer, Jalgaon .. Applicant VERSUS Shri Madhukar Rajaram Patil .. Respondent Mrs. V.A. More, AGP. the appellant-State Mr. S.R. Barlinge, Advocate for the respondent ... CORAM : A.V. NIRGUDE, J. DATED : 23RD FEBRUARY, 2010 ORAL JUDGMENT 1] This Appeal is filed against the judgment and award passed by the learned Civil Judge Senior Division, Jalgaon dated 19.8.1994 in Land Acquisition Reference No. 66 of 1991. (2) FA. 212.1995 2] The respondent was the owner of house no. 84 admeasuring 411=50 sq. mtr. of village Nimbol, Tq. Raver, Dist. Jalgaon. The respondent-State of Maharashtra through the Special Land Acquisition Officer acquired this house along with other properties for an irrigation project by name Hatnur dam. The land beneath the reference house and the house was to get submerged under water. The notice under section 4 of the Land Acquisition Act, 1894 was published on 15.9.1983 and in due course the award was passed on 12.9.1986, awarding compensation of Rs.2,48,281=72 inclusive of value of the land, the value of the structure, solatium etc. 3] The respondent filed a reference under section 18 and sought enhancement in the amount of compensation. He claimed Rs.100/- per sq. mtr. as value of the land and enhanced compensation for the structure. The appellant-State of Maharashtra resisted the reference. The learned Judge of the reference Court framed issues and allowed the parties to lead evidence. The learned Judge of the reference Court held that the market value of the reference land and the structure was Rs.200/- per sq. mtr. For the purpose of arriving at this conclusion, the learned Judge of the reference Court placed reliance on the sale instance of a house property of village Ainpur and valuation report (3) FA. 212.1995 submitted by the respondent-claimant. Relying on these two evidences, the learned Judge recorded his finding as mentioned above. Besides, the learned Judge also accepted the valuation of the structure standing on the land as Rs.4,01,400/-. 4] The learned AGP appearing for the appellant-State, mainly raised three points:- . Her first point is that the learned Judge of the trial Court erred in placing reliance on the sole sale instance that too from a different village. . On perusal of the record it is seen that the respondent-claimant placed on record 4 sale instances of village Nimbol and village Ainpur. However, the learned Judge of the reference Court placed reliance only on exhibit 15 which showed that in May, 1992 a piece of land admeasuring 24.54 sq. mtr. of village Ainpur was sold @ Rs.326/- per sq. mtr. The learned Judge then discussed as to how this sale instance could be considered as the benchmark and ultimately came to a conclusion that the market value of the land beneath the structure of the respondent would have been Rs.200/- per sq. mtr. 5] Although I am not fully agreeing with the reasons mentioned by the learned Judge, coming to such conclusion, I am not inclined to disturb this (4) FA. 212.1995 finding. The reasons are quite obvious. As said above, 4 sale instances were placed on record. The first one exhibit 12 was of an open space admeasuring 54.4 sq. mtr. of village Nimbol which was sold on 7.3.1980 @ Rs.120/- per sq. mtr. Exhibit 13 is an exchange deed of 1985 and I am not inclined to take that into account being not of the period when the notification was issued in 1983. Exhibit 14 is a sale instance of open space of village Ainpur admeasuring 32.35 sq. mtr. dated 15.5.1981 @ Rs.247.29 per sq. mtr. The last one was exhibit 15 which was in respect of an open plot of village Ainpur admeasuring 24.54 sq. mtr. sold on 5.5.1982 at the rate of Rs.326/- per sq. mtr. . The submission of the learned AGP is that the conditions of village Ainpur were different than those of village Nimbol, has some substance. It is reflected from the difference in market value of the land sold at these two villages in 1980-81. On one hand in 1980, the open plot of village Nimbol sold at Rs.100/- per sq. mtr. About an year after similar open plot of Ainpur was sold at Rs.250/- per sq. mtr. The difference is almost 100%. Assuming there was an escalation in the price within one year, yet the value could not have gone up by 100%. In view of this, the submission of learned AGP cannot be said to be incorrect when she said that the learned Judge erred in taking into account only the sale instance of village Ainpur. If the sale instance (5) FA. 212.1995 exhibit 14 and 15 are discarded from my consideration, I have only one sale instance of village Nimbol, exhibit 12. Now if this is made the basis for determining the market value of the reference land, the valuation made by the trial Court at the rate of Rs.200/- per sq. mtr. cannot be said to be absurd or incorrect. Having regard to escalation in price of land at the @ 15% per annum the valuation of Rs.200 per Sq. mtr on the date of the notification could not be incorrect. In view of this, though my reasons are different, I would come to the same conclusion that the market value of the reference land could be around Rs.200/- per sq. mtr. In this regard, a reference can even be made to the valuation report exhibit 17. The Government approved valuer, witness no.2 of the respondent- claimant, utilised different method for arriving at a conclusion that the market value of the land under reference could not be more than Rs.200/- per sq. mtr. So, the finding of the lower Court about the market value of the land under reference is not incorrect, and I confirm the same. 6] The learned AGP appearing for the appellant-State contended that the valuation report exhibit 17 is not a reliable piece of evidence. However, besides the aspect discussed above in respect of the difference between village Ainpur and village Nimbol, there is nothing on record to (6) FA. 212.1995 suggest that the valuation report is incorrect. I have already discussed above that the opinion of the Valuer in respect of the market value of the reference land is not incorrect. Now the only thing that remains is the Expert's opinion about the cost of the structure standing on the reference land. There is nothing on record to dispute his opinion. No evidence is recorded in respect of the cost of the structure other than the Expert's opinion. It appears that the learned Special Land Acquisition Officer had also awarded a sizable amount towards the cost of the structure. I am therefore, not inclined to disturb the finding recorded by the Court below in respect of the cost of the structure. 7] The third but rather insignificant point raised by the learned AGP for the appellant-State depends on the fact that in lieu of the plot of land which the respondent claimed to have lost in the land acquisition, he was allotted a similar plot at nominal cost elsewhere in the village. She asserted that in view of this, suitable amendment should be made in the amount of compensation. I am afraid this suggestion cannot be accepted because this point was not raised in the written statement and so, no issue was framed on this point. The admission recorded in the cross-examination of the respondent on this point is thus, not relevant. (7) FA. 212.1995 8] The First Appeal shall fail. The First Appeal stands dismissed. Consequently, Civil Application no. 4919 of 1996 seeking stay also stands dismissed. Sd/- (A.V. NIRGUDE, J.) arp