-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.771 OF 1991 APPEAL NO.771 OF 1991 APPEAL NO.771 OF 1991 The State of Maharashtra ...Appellant vs. Arun Baburao Mohite ...Respondent Mr.B.H.Mehta A.G.P. for State Mr.Vivek Salunkhe h/f for Mr.P.B.Shah for the Respondent CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : FEBRUARY 11, 2008. : FEBRUARY 11, 2008. : FEBRUARY 11, 2008. ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. Heard learned A.G.P. for the Appellant. The challenge in the Appeal is to the impugned Judgment and Award dated 31st January 1991 passed by the learned Joint Civil Judge (S.D.), Satara. 2. The impugned Judgment and Award has been passed on a reference under section 18 of the Land Acquisition Act,1894. The subject matter of the acquisition is the land bearing plot No.18 and 19 situated at Saidapur, Taluka Karad, District Satara. A notification under section 6 of the said Act of 1894 read with section 126 of the Maharashtra Regional and Town Planning Act,1966 was issued on 20th April 1986. The Award under section 11 of the said Act of 1894 was made on 14th March 1988. As the compensation amount offered was not accepted by the respondent claimant, a reference under section 18 of the said Act of 1894 was made at the instance of the -2- Respondent. By the impugned Judgment and Award, the learned trial Judge held that the area of the acquired plots as mentioned in the Award under section 11 was correct. However,the learned trial Judge enhanced the market value by holding that the market value of the acquired land was Rs.85/- per sq.meter. 3. The submission of the learned A.G.P. is that the Respondent-claimant has not discharged the burden on him of establishing that the market value offered by the Special Land Acquisition Officer was inadequate. He submitted that the trial court has relied upon the certain sale instances referred to in the Award under section 11 of the said Act for coming to the conclusion that the market value of the acquired land was at the rate of Rs.85/- per sq.meter. He submitted that the sale instances forming part of the Award under section 11 were not produced and proved. He, therefore, submitted that no case is made out for grant of enhancement. The learned Advocate for the Respondent supported the impugned Award by pointing out the findings and material on record. 4. I have considered the submissions. I have perused the impugned Judgment and Award as well as notes of evidence. It is well settled position of law that a claimant in a reference under section 18 of the said Act of 1894 is in the position of the plaintiff and therefore, burden is on the claimant to lead -3- evidence and to establish that the market value awarded by the Collector is inadequate. Perusal of the Roznama as well as deposition of the Respondent shows that the Appellant has not produced any sale instance. The Respondent has not examined any other witness except himself. 5. The learned Judge in paragraph 5 of the Judgment has referred to the contents of the Award under section 11 of the said Act of 1894. In paragraph 5 of its Judgment, the learned Judge has observed thus : 5....L.A.O. Satara ought to have awarded the compensation at the rate of Rs.25/- per sq. ft. He has led his oral evidence at Exh.34. His oral evidence does not establish that the market price of the lands under acquisition was Rs.25/- per sq.ft. at the time of publication of the notification under section 4 of the Land Acquisition Act. After churning all these things and aspects, it is necessary to look into the observations made by the S.L.A.O. while passing the award. The page No.8 of the award shows that no panch valuation, has been made by S.L.A.O. regarding the market price of the lands under acquisition. The page No.12 of the award manifests that, the S.L.A.O. has based his valuation on two sale instances showing the rates of Rs.90/- per sq. metrs. and has fixed the general valuation of the similar plot -4- with a single frontage at the rate of Rs.85/- per sq. mtrs. According to Special Land Acquisition Officer the said rate is quite reasonable and fair. The page 13 of the award shows that after receiving the directions from the Government on 25th September 1987, the S.L.A.O. awarded the compensation at the rate of Rs.30/- per sq. mtrs. No any ground is disclosed while awarding the amount of compensation, considering all these things and taking into consideration the situation of plots under acquisition, I hold that the compensation ought to have been awarded to the Claimant at the rate of Rs.85/- per sq. mtr. Under these circumstances, I also hold that the Claimant is entitled for compensation at the rate of Rs.85/- per sq. mtr. in respect of plots No.18 and 19 under acquisition. It is also necessary to mention here that is plots under acquisition are in the vicinity of State-Highway. Those plots are nearest Karad City and there are no comparable sale which can guide the Court to determine as correctly as possible. Under such circumstances, I rely upon the ruling laid down in A.I.R. 1989 Punjab Hariyana page 27 in which Their Lordships have held that - . Where there are no comparable sale which can guide the Court to determine as correctly as possible. The market value of the acquired land and the market value has to be determined, the -5- Court can import the rule of the obviately as far as possible, the Claimant of arbitrariness and arrive at which is jut and fair as possible. Under such circumstances, I also hold that the compensation awarded to the Claimant by the Special Land Acquisition Officer is not sufficient and it is very low. For these reasons, I hold that the Claimant is entitled for enhancement of the amount of compensation in respect of the plots No.18 and 19 under acquisition." 6. Thus the finding of the trial court is that the evidence led by the Respondent does not establish that the price of the acquired land was Rs.25/- per sq. meter on the relevant date. The learned trial Judge has referred to certain part of the Award under section 11 of the said Act of 1894. By referring to the Award under section 11, the learned trial Judge has jumped to the conclusion that the market value ought to have been Rs.85/- per sq. meter. On plain reading of the findings recorded by the learned trial Judge, it is obvious that there is absolutely no basis for coming to the said conclusion that the market value was Rs.85/- per sq. meter. The said finding recorded by the learned trial Judge is perverse and deserves to be set aside. 7. There was no basis for granting enhancement in -6- compensation as it was the case where no legal evidence was adduced by the Respondent for establishing the correct market value. The claimant/Respondent has not produced any sale instance. The sale instances referred to in Award under section 11 of the said Act have not been produced and proved before the Reference Court. The evidence of the Respondent does not discharge the burden on him. Hence, Appeal must succeed. Hence, I pass the following order: i) Impugned Judgment and Award is quashed and set aside and the land acquisition reference No.14 of 1988 stands dismissed. There will be no order as to costs throughout. JUDGE JUDGE JUDGE