-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1377 OF 2007 Genu Bhivaji Rao ) Age: adult Occ. Agriculturist, ) R/0 Mukane Tal.Igatpuri, Dist.Nashik )...Appellant versus 1. The Special Land Acquisition Officer, ) Upper Godavari, Nashik ) 2. Executive Engineer, Nandur Madhmeshwar ) Project, Nashik Division, Nashik. )..Opponents (Orig. Respondents) WITH FIRST APPEAL NOS. 2526 TO 2534, 2537 TO 2539, 2541, 2545, 2547 TO 2554 TO 2568, 2570, 2572 TO 2576, 2578,2580 TO 2587, 2589 TO 2601, 2603 TO 2605, 2607 TO 2608, 2610 TO 2615, 2618, 2619, 2622, 2625 TO 2626 OF 2006, 2462 TO 2525, 2535 , 2542 TO 2544, 2546, 2566,2569, 2571, 2577, 2579, 2588, 2602, 2606, 2616, 2617, 2620, 2621, 2623, 2624, 2397, 2536, 2398, 2540, 2399, 2609 OF 2006, 1717 OF 2003 TO 1719 OF 2003, 1383 TO 1455 OF 2007. AND FIRST APPEAL NOS. 1378 TO 1382 OF 2007 (First Appeal Nos. 1378 to 1382 of 2007 are inserted vide order passed by the Court on 31st July, 2009 (Coram: Swatanter Kumar, C.J. & J.P. Devadhar, J.) WITH -2- CROSS OBJECTION STAMP NOS. 25241, 8274, 2430, 2435, 2453, 2520, 2521, 2522, 2524, 2526, 2527, 2454, 2455, 2528, 2529, 2530, 2531, 2532, 2533, 2534, 5876, 5877, 2535, 5865, 5878, 5879, 5867, 5868, 2536, 5870, 5863, 2537, 5889, 2538, 2539, 2540, 2541, 2542, 2543, 13139, 8270, 13141, 8273, 2544 AND 5891 OF 2007. WITH CIVIL APPLICATION NOS. 3034 OF 2004, 4437, 4405 TO 4413, 4416 TO 4418, 4420, 4424, 4426 TO 4433, 4438 TO 4443, 4434 TO 4436, 4444, 4447, 4449,. 4451 TO 4455, 4457, 4459 TO 4466, 4468 TO 4480, 4482 TO 4487, 4489 TO 4494, 4504, 5405, 4497, 4498, 4501, 4347, 4350, 4353 TO 4358, 4394, 4395, 4398, 4400, 4402, 4414, 4421 TO 4423, 4425, 4445, 4448, 4450, 4456, 4458, 4464, 4481, 4485, 4495,4496, 4499, TO 4500, 4502 , 4503, 4415, 4419, 4488 OF 2006 , 6402, 6406, 6407, 6408, 6409, 6410, 6411, 6412, 6413, 6423, 6378, 6379, 6381, 6382, 6394, 6395, 6399, 6430, 6431, 643, 6434, 6436 TO 6438, 6440 6441, 6442, 6444, 6445, 6446, 6448 TO 6450 6451, 6452, 6479, 6480, 6453, 6455, 6383, 6358, 6388 TO 6391, 6393, 6458 TO 6465, 6467 TO 6478, 5927, 6429, 6488, 6427, 6481, 6492, 6491, 6485, 6488, 6320, 6321, 6322, 6323, 6324, 6325, 6327, 6328, 6330, 6331, 6333, 6355, 6334, 6335, 6336, 6337, 6338, 6339, 6340, 6341 TO 6345, 6356 TO 6372, 6501, 6373 TO 6375, 6416, 6417, 6376, 6418 TO 6421, 6377, 6422, 6456, 6405, 6424 TO 6426, 6415, 6414, 6404, 6380, 6396 TO 6398, 6454, 6384, 6386, 6392, 6457, 6466, 6439, 6435, -3- 6482, 6483, 6486 TO 6490, 6403, 6400, 6432 OF 2007. Mr. K.K. Tated, Assistant Government Pleader, for the State Appeals and for the Respondents in Claimants Appeal/Cross Objections. Mr. P.N. Joshi, instructed by Mr. S.S. Gite, Mr. S.M. Gorwadkar, S.S. Kotwal, for the appellants in Claimants appeal and for the respondents in States appeals and connected civil applications including respondents in C.A. Nos. 6320 to 6492 of 2007 in F.A. No. 2462 of 2006 to 2626 of 2006. Mr. K.B. Sonwalkar for the added Respondents in First Appeals and Applicants in C.A. Nos. 6320 to 6492 of 2007 in F.A. No. 2462 of 2006 to 2626 of 2006. CORAM: SWATANTER KUMAR, C.J. & J.P. DEVADHAR , J. Judgment reserved on : January 23, 2008 Judgment delivered on: January 31, 2008 JUDGMENT (Per Swatanter Kumar, C.J.): By this common judgment, we will dispose of 165 appeals filed by the State, 80 appeals filed by the claimants, 45 Cross objections filed by the claimants in State Appeals and 330 connected -4- Civil Applications. 2. The Special Land Acquisition Officer (hereinafter referred to as "the SLAO"), while exercising his power as Collector, published a notification on 5th May, 1994, under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as "the Act"), clearly stating the intention of the Government to acquire the land from the revenue estate of village Mukane, Tal. Igatpuri, District Nashik, for a public purpose viz. Mukane Dam Project. In furtherance to this, declaration under Section 6 of the Act was issued on 7th July, 1994, which was published in the official gazette on the same day. The SLAO, after complying with the requirements of the provisions of the Act, published his award dated 20th October, 1995, under Section 11 of the Act. The SLAO classified the lands in differrent groups and based upon the assesment, gave compensation varying from Rs. 37,000/- per hectare to Rs. 1,17,000/- per hectare. The total land acquired was 349 hectares 59.3 ares. It has been noticed in the award that an enquiry under Section 11 of the Act was carried out but no objections were received. The claimants had filed their claims -5- claiming different compensation for lands varying from Rs. 3 lakhs to Rs. 7 lakhs. The land owners-claimants felt disatisfied from the award of the Collector made applications under Section 18 of the Act. These applications were referred by the Collector to the Court of competent jurisdiction and the Reference Court vide its judgment and award dated 14th February, 2006, after considering the oral and documentary evidence on record, fixed the compensation as follows:- Rs. 2,12,500/- per hectare for jirayat land. Rs. 1,06,250/- per hectare for pot-kharaba land. In other words, the Court classified the entire acquired land into two sections and awarded the fair compensation, while referring to various sale instances. 3. Still the claimants felt aggrieved from the judgment of the reference Court preferred appeals before this Court praying for further enhancement of the awarded compensation. They have challenged the correctness and legality of the judgment of the Reference Court. -6- According to them, the Court has ignored relevant piece of evidence and has not given the appropriate compensation to the claimants. We may also notice here that during the pendency of this appeal, an application being Civil Application No. 6581 of 2007 was filed by the claimants in First Appeal No. 1377 of 2007. It was prayed by the applicant that the additional evidence be permitted to be led in the First Appeal by taking on record the map Exhibit-1 and 7/12 extracts annexed to that application. When this application came up for hearing, the same was disposed of by us vide our order dated 22nd January, 2008, which reads as under. "Prayer made by the applicant in this application is not opposed. The map in question has been prepared by the Development Authority which itself is a party in the present appeal and has been permitted to intervene in this appeal. Consequently, this application is allowed subject to just exceptions. The map annexed to this application is taken on record with the consent ofthe learned counsel appearing for the parties and the same is marked as 'C1'. Applicationis accordingly disposed of." 4. The Authority i.e. The Godawari Marathwada Irrigation Development Corporation, for whose benefit the land had been acquired, had also filed applications for becoming parties to the -7- present appeals. These applications are 165 in number. To these applications, there was no opposition. We also heard the arguments on behalf of the said authority. Having heard the learned counsel appearing for the parties and the fact that there was no opposition to these applications, all these applications for impleadment are also allowed and are accordingly disposed of. 5. 165 Civil Applications have been filed on behalf of the State in their Appeals praying for stay of the judgment and award of the Reference Court dated 14th February, 2006. All these applications have been rendered infructuous inasmuch as by this judgment we are disposing of all the appeals i.e. 165 appeals filed by the State, 80 appeals filed by the claimants and 45 Cross Objections filed by the Claimants in State appeals. 6. Before the Reference Court, the claimants, besides leading oral evidence, produced and proved on record sale deeds at Exhibits- 20, 24, 27, 37, 39, 46, 55 and 57. Exhibit-18 was the judgment passed by the Reference Court in another connected References being -8- L.R. Nos. 168 to 170 of 1995 decided on 6th September, 2002 where the land was acquired for Mukane Dam Project from the same village, by notification under Section 4 of the Act which was published on 5th May, 1994 and wherein the trial Court awarded compensation at the rate of Rs. 2,12,500/- per hectare. The State only produced and proved on record two sale instances, Exhibits-51 and 54. No oral evidence was led by the State regarding these sale deeds. 7. As far as the two sale instances, Exhibits-51 and 54 proved by the State are concerned, these are the sale deeds dated 27th November,1991 and 19th November, 1993 respectively wherein nearly an area of 1.37 hectare was sold for a sum of Rs. 51,375/- and an area of 71 ares was sold for a sum of Rs. 38,000/- per acre. Calculating the rate on the basis of these sale instances, the market value of the land would be Rs. 37,500/- and 53,221/- per hectare respectively. Both these sale instances cannot be looked into by the Court as they hardly would have any evidenciary value for determining the fair market value of the land as the market value indicated is even below the rate awarded by the SLAO in his award. The sale consideration -9- indicated in the sale deeds being below the valuation given by the Collector, these documents are hardly of any consequence in view of Section 25 of the Act. Even otherwise, it is not reflected in the sale deeds relied by the State that a willing buyer was prepared to pay the market price to a willing seller of the property free from encumbrances and restrictions. 8. Out of the entire sale instances produced and proved by the claimants, Exhibit-27 needs to be dealt with at the very threshold. This is a sale deed dated 3rd April, 1992 from village Mukane where the land admeasuring about 9.1 ares was sold for a consideration ofRs. 50,000/- i.e. at the rate of Rs. 5,49,450/- per hectare. Though the sale deed had been produced which is somewhat prior to the date of notification under Section 4 of the Act i.e. 5th May, 1994, on the face of it, it does not appear to be a genuine transaction. Firstly, an area of 9.1 ares stated to have been sold under this sale deed is a very small area and cannot be a guide for determining the fair market value of the land in question. Secondly, this sale deed is stated to have been executed on 3rd April, 1992, while number of other sale instances -10- have been produced by the claimants of Mukane village wherein in the year 1993, the land was sold at the rate of Rs. 2,12,500/- per hectare. Prima facie, this document lacks bona fides and in any case cannot be a safe criteria to be adopted by the Court in consonance with the provisions of Section 23 of the Act. We may also notice here that during the course of arguments, the learned counsel appearing for the claimants really did not press for grant of compensation on the basis of this particular document. 9. Similarly, Exhibits-39, 46 and 55 again are not relevant piece of evidence. They are the sale deeds relating to village Wadivarhe and not village Mukane. We may appropriately refer at this stage the findings recorded by a Division Bench in the case of The State of Maharashtra vs. Smt. Fulyabai Kisan Govardhane and others, (First Appeal No. 1171 of 2007), which reads as under: "The claimants cannot take advantage of a judgment awarding compensation for acquired land of an adjacent village. Even if it is so assumed that Village Mukane is an adjacent village, the compensation was awarded on the basis of the evidence recorded in those cases. It is not -11- necessary for the Court to grant similar or higher compensation. In fact, some times it may be difficult even to take into account the judgments of the Reference Court in the case of adjacent villages because they may not be comparable instances in their true perspective. Reference in this regard can be made to the decisions of the Apex Court in (i) Pal Singh and others vs. Union Territory of Chandigarh, (1992) 4 SCC 400 and (ii) Karan Singh and others vs. Union of India (1997) 8 SCC 186. In Pal Singh (supra), the Supreme Court held as under: “No doubt, a judgment of a court in a land acquisition case determining the market value of a land in the vicinity of the acquired lands, even though not inter parties, could be admitted in evidence either as an instance or one from which the market value of the acquired land could be deduced or inferred as has been held by the Calcutta High Court in H.K. Mallick case, 79 CWN 378 based on the authority of the Judicial Committee of the Privy Council in Secretary of State for India in Council vs. Indian General Steam Navigation and Railway Co. Ltd., ILR 36 Cal 967, where the Judicial Committee did refuse to interfere with the High Court judgment in a land acquisition case based on previous awards, holding that no question of principle was involved in it. But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, it must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due -12- regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land. In the cases on hand, the petitioners who are claimants claiming enhanced compensation for their acquired land have not produced the judgment of the High Court on which they propose to rely for finding the market value of their acquired lands as evidence in their cases, in that they could not have done so for the reason that it was not a judgment then available to them as a previous judgment relating to market value of land in the vicinity.” It is a settled principle of law that where sale instances from the revenue estate of the same village from where the land has been acquired are available and they are otherwise relevant and comparable sale instances, it is not required of the Court to look into the sale instances of the adjacent villages. Exhibits-37, 39 and 46 even otherwise should not be looked into inasmuch as they are the sale deeds of November/December,1994, nearly six months after the date of the notification under Section 4 of the Act issued on 5th May, 1994. 10. Having discarded this evidence, let us examine the admissible and comparable instances which could provide legal -13- precept for determination of the controversy. 11. The reference Court relied upon Exhibit-20 which was the sale instance of the year 1990 wherein jirayat land admeasuring about 60 Ares was sold at the rate of Rs. 2 lakhs per hectare which was a result of the agreement to sale-Exhibit-23 executed in the year 1989. Now, we may proceed to refer to Exhibit-24, which is a sale deed dated 31st March, 1993 from the same village wherein 60 Ares of land was sold for Rs. 1,27,500/- i.e. at the rate of Rs. 2,12,500/- per hectare. This, in our opinion, would be the most relevant and material piece of evidence which can be considered by the Court. The reference Court held as under: 'The claimants have relied on the previous judgment at Exh. 18. The farmers of village mukane whose lands were acquired for mukane dam have received the enhanced compensation by thesaid judgment. The market rate of the fields at village was determined by the said Judgment at Rs. 2,12,500/- per hector. The rate per hector derived from the sale instance also comes to Rs. 2,12,500/-. I, therefore, come to the conclusion that the market value of the acquired fields at village Mukane at the time of acquiswition comes to Rs. 2,12,500/- per hector. 24. Portions of the acquired lands consists of Pot- -14- Kharaba land. In the case of State of Maharashtra vs. Pralhad [ 1996 (1) BCJ, 247], Hon'ble Apex Court held that Pot-kharaba land cannot be equated with the Jirayat land and it may be valued at the 50% of the market value given to Jirayat lands. Considering this proposition, the market value of the Jirayat land at Village Mukane, on the date of notification is determined as Rs. 2,12,500/- per hector, 50% of the market value determined for the Jirayat land is to be provided to the Pot-kharaba portions of the acquired lands which comes to Rs. 1,06,250/- per hector". Exhibit-24 thus is closest to the date of the notification under Section 4 of the Act which has been duly proved in accordance with law by P.W. 2 Sitaram. This sale instance cannot be termed as a sale deed relating to a very small piece of land. 40 areas are equivalent to an acre and 100 ares make a hectare. Thus, Exhibit-24 relates to sale of a land of nearly 1.5 acres which is a reasonable size of land to be considered by the Court. Sitaram Nabha Rao (P.W.2) whose statement is at Exhibit-19 stated that the land in question was sold under an agreement to sale (Exhibit-23) which was entered into nearly a year back and the sale deed was registered subsequently. In his cross-examination he also stated that there was a water stream at the south of the land sold and it was continuously flowing. Kachru -15- Gabaji Shinde (P.W. 1) who was examined at Exhibit-17 while deposing on behalf of himself and other claimants stated that they had received the compensation at the rate of Rs. 44,000/- to Rs. 1,17,000/- per hectare but was inadequate and they were entitled to get compensation at the rate of Rs. 6 to 7 lakhs per hectare. The possession of the lands were taken in the year 1992. Describing the location and potential of this land, this witness stated as under. "5. Village Mukane is at a distance of one K.M. From Mumbai-Agra Road to its west side. At the east of the road, there is Railway Station at Padali. Village Padali is adjacent to the village arera of Mukane to the east side. At the north of village Mukane, there is village area of Wadivarhe. To the south there is village area of Mundhe and to the west Chandegaon. The project is at the western side of all these villages and therefore many agricultural lands of these villages are covered by the catchment area. Village Mukane is at a distance of about 22 K.Ms. and from the boundaries of Nashik Corporation, it is at a distance of 14 to 15 K.Ms. " Nothing material came out in his cross examination relevant for the purpose of determining compensation. 12. In the present case, while making reference to the above sale instances, the reference Court has mainly relied upon the earlier -16- judgment of the Court dated 6th September, 2002, Exhibit-18 relating to the same notification under Section 4 of the Act dated 5th May, 1994. Giving compensation of Rs. 2,12,500/- to the jirayat land, the Court calculated the compensation payable for the pot kharaba portion at Rs. 1,06,250/-. Exhibit-18 itself is subject matter of first appeals before us being First Appeal No. 1717 of 2003 and other connected appeals. These appeals have also been listed for hearing. Thus, the correctness and legality of Exhibit-18 is also in question before the Court. According to the claimants, they are entitled to higher compensation while in the appeals filed by the State they have prayed for withdrawing the enhancement given by the reference Court in favour of the claimants. The reference Court noticed that compensation either computed on the basis of the sale instances or with reference to the judgments of the Court awardable to the claimants would be similar. We have already noticed that it was not appropriate for the reference Court to rely upon Exhibit-20 particularly when the sale instances of relevant period were available and were comparable. -17- 13. In the considered view of the Court, Exhibit-24 can safely be relied upon by the Court while determining the fair market value of the land on the date of the notification issued under Section 4 of the Act. The location of the land has been clearly described by the claimants who appeared as witnesses as well as from the map Exhibit C-1 produced before this Court. In Exhibit C-1, the acquired land has been shown in green colour and the boundary of village Mukane has been described in blue colour. The revenue estate of village Mukane abuts the boundary of village Wadiwarhe and part of Mukane Dam falls in the revenue estate of both these villages. Mumbai-Agra Highway is at some distance and passes through village near Raymond Company. The oral and documentary evidence shows that the land of these villages is more or less similar from its location and potential point of view, of course, the land of the other two villages is closer to the Highway. The learned counsel appearing for the claimants argued that no deduction should be made either on account of development charges or on account of smallness of the plots. According to them, the entire land has been acquired for Mukane dam and resultantly the entire land would be submerged under the water and no development -18- activity could be carried out and, therefore, the deduction on account of development charges would be unfair. It is also the contention that Exhibit-24 is a sale instance of one and half acres of land and thus no deduction from the sale price would be called for in the facts and circumstances of the case. This argument raised on behalf of the claimants certainly has some merit. We have already discussed at some length that for sale instances of small pieces of land, permissible deduction would not be applicable in the facts of the present case. Similarly, no deduction need be made on account of development charges. The entire land is being used for agricultural activity, part of which is jirayat land while the other is pot-kharaba land. The entire land has been acquired for a common purpose i.e. Mukane dam. The potential of the entire land thus would be similar. Applying deduction on any of the above two counts would vest the claimants without fair results. The statutory provisions of Section 23 of the Act require that the Court has to determine the amount of compensation payable to the claimants while taking into consideration the criteria specified in the Section. The Court has to determine the compensation payable to the claimants which, besides being just and fair in terms of the market -19- value, is also equitable as these are cases of compulsory acquisition. 14. While relying upon the judgment of the Supreme Court in the case of Om Prakash (dead) by Lrs. and others vs. Union of India and another [ 2004 (10) SCC 627), it was also contended on behalf of the claimants that this being an agricultural land and keeping in view the increasing market value of the land, the appreciation at the rate of 12% should be allowed to the claimants. The Supreme Court in that case held as under: "In the circumstances, the High Court was justified in working out the fair market value of the lands in question on the basis of Rs. 16,750 per bigha as on 30-10-1963. The High Court noticed that in several judgments of this Court escalation at different and varying rates i.e.