( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 327 OF 1993 Maroti s/o Sambha, R/o Mangyal, Taluka Mukhed, District Nanded. APPELLANT VERSUS 1. The State of Maharashtra, through the Collector, Nanded. 2. The Special Land Acquisition Officer, M.I. Works, Nanded. RESPONDENTS WITH FIRST APPEAL NO. 328 OF 1993 Shivraj @ Shivaji s/o Veerbhadra, Age : 17 years, Minor u/g of father Veerbhadra s/o Sambha, R/o Mangyal, Taluka Mukhed, Dist. Nanded. APPELLANT VERSUS 1. The State of Maharashtra, through Collector, Nanded. 2. The Special Land Acquisition Officer, M.I. Works, Nanded. RESPONDENTS ..... Mr. Rohit S. Sarvadnya, advocate with Mr. Murar V. ( 2 ) Deshpande, advocate, for the appellant in both appeals. Mrs. V.M. More, A.G.P. for respondents in both appeals. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE : 5th November, 2009] ORAL JUDGEMENT : 1. Both these appeals are being decided together in as much as they arise out of common judgement rendered by learned Civil Judge (S.D.), Biloli, in Land Acquisition References No. 15/1989 and 16/1989. The Reference Court dismissed both the References whereby the appellants had sought enhancement of compensation under section 18 (1) of the Land Acquisition Act, 1894 (for short, “the Act”. 2. There is no dispute about the fact that agricultural lands of both the appellants were acquired by the respondents for purpose of percolation tank. The notification for acquisition of the lands was issued on ( 3 ) 11th April, 1984 as per section 4 (1) of the said Act. The acquired lands are situated at village Mangyal. The appellants were awarded compensation at rate of Rs. 12,000/- per hectare vide the award rendered by the Special Land Acquisition Officer. They accepted the amounts under protest. They submitted reference applications on the ground that the acquired lands were very fertile, could have high yielding capacity and their market value was atleast Rs. 15,000/- per acre. They sought compensation at rate of Rs. 15,000/- per acre for the acquired lands. 3. Both the Reference cases have been dismissed by the trial Court. The trial Court held that the appellants failed to prove sale instances in respect of other lands which have not been acquired. The trial Court held that the compensation awarded to the appellants was legal and proper. Hence, both the Reference cases were dismissed. Feeling aggrieved, the original claimants have preferred these first appeals. 4. Heard learned counsel and learned A.P.P. ( 4 ) 5. Before I proceed to consider the impugned judgements, it is important to notice that several lands were acquired for the purpose of percolation tank. These lands are situated adjacent to each other. There are three (3) adjoining villages called ”Mangyal”, “Mamjalga” and “Sawargaon”. These small villages are at a short distance from Mukhed. There is no dispute about the fact that the appellant – Shivraj is a minor and is represented by his father. 6. At this juncture, it may be noticed that alongwith the lands in question, agricultural land of Abdul Rehman and Abdul Wahab, who are brothers interse, was also acquired. Their Land Acquisition Reference No. 17/1989 is partly allowed by the same Court. They have been awarded enhanced compensation. What appears from the record is that the land owned by said Abdul Rehman and Abdul Wahab is acquired for the same public purpose, namely, construction of a percolation tank. The learned counsel for the appellants has produced copy of judgement delivered in Land Acquisition Reference No. ( 5 ) 17/1989 on record. He makes a statement that first appeal (Stamp) No. 5861/1991 was preferred by the respondents against the award rendered by the trial Court in Land Acquisition Reference No. 17/1989. A copy of the said judgement in Land Acquisition Reference (L.A.R.) No. 17/1989 is placed on record and is marked “X” 7. It is significant to note that judgement in L.A.R. No. 17/1989 has reached finality. For, the first appeal was dismissed by this Court as the delay was not condoned. In view of order dated 14-08-2007 on civil application No. 2377/1991, the trial Court in L.A.R. No. 17/1989 seems to have relied on some sale instances which were placed on record by the appellants. It appears that because separate trials were held in each case, the mistake has occurred while showing the market value of the acquired land. The lands have been acquired from Sawargaon, Mangyal and Kamjalga. It is observed by the learned Judge that the lands situated at all the above three places are to be estimated by applying the same yardstick. ( 6 ) 8. Once it is found that the award in L.A.R. No. 17/1989 has reached finality, it goes without saying that the same instances pointed out by the appellants could be considered. They are also entitled to the enhanced compensation likewise the claimants in L.A.R. No. 17/1989. The trial Court held that the three villages i.e. Mangyal, Sawargaon and Kamjalga are situated in the proximity of each other. The lands have been acquired from the said three villages. It has come on record that village Mangyal is hardly 5 kms. away from Mukhed, which is a Taluka place situated at Nizamabad-Latur High Way. The market value cannot be determined on basis of the assessment made by the revenue authorities for fixation of the land revenue. 9. The appellants adduced evidence to show that the lands to be acquired were of black soil. They further adduced evidence to show that the lands were of fertile quality. The respondents did not lead any evidence before the trial Court. The trial Court seems to have dismissed the suit on technical grounds and ( 7 ) without assigning convincing reasons as regards the so called failure of the appellants to adduce proper evidence. The learned Judge of the Reference Court dislodged version of PW2 Jaiwant but the same is relied upon in L.A.R. No. 17/1989. 10. There is no serious reason to deny benefit of higher compensation to the appellants when their lands and the lands of petitioners Abdul Rehman and Abdul Wahab (L.A.R. No. 17/1989) are situated in the proximity of each other and have been acquired under the same award. Considering these aspects, I have no hesitation in holding that the appellants are entitled to receive enhanced compensation at rate of Rs. 32,250/- per hectare likewise the claimants in L.A.R. No. 17/1989. 11. In the result, both the appeals are partly allowed. The appellants would be entitled to recover enhanced compensation at rate of Rs. 32,250/- per hectare. They shall be paid difference of compensation alongwith the other incidental benefits as provided under section 23 (1A) of the Land Acquisition Act, 1894. ( 8 ) They will be entitled to interest and solatium on the excess amount awarded. No costs. [ V.R. KINGAONKAR ] JUDGE NPJ/fa327-328-93