( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO. 424 OF 1993 The State of Maharashtra, through Special Land Acquisition Officer, Jalgaon. APPELLANT VERSUS Sitaram Sakharam Bari, R/o Shendurni, Tq. Jamner, District Jalgaon. RESPONDENT ..... Mr. S.D. Kaldate, AGP for the appellant/State. Mr. A.R. Kawade, advocate holding for Mr. P.R. Patil, advocate for the respondent. ..... WITH FRIST APPEAL NO. 425 OF 1993 The State of Maharashtra, through Special Land Acquisition Officer, Jalgaon. APPELLANT VERSUS 1. Devchand Harsing (deceased) 2. Vitthal Devchand (deceased) by legal heirs of appellants No. 1 and 2. 1a. Kanhiram Deochand 1b. Narayan Deochand 1c. Hari Deochand 2a. Tanhabi Vitthal ( 2 ) 2b. Ramesh Vitthal 2c. Malubai Basntlal 2d. Chhayabai Premchand 2e. Ashabai Partap Appellants No. 1a to 1c and 2a to 2e are r/o Jangipura, Tq. Jamner. RESPONDENTS ..... Mr. S.D. Kaldate, AGP for the appellant. Mr. A.R. Kawade, advocate holding for Mr. P.R. Patil, advocate for respondents No. 1(a) and 2 (b). ..... WITH FIRST APPEAL NO. 426 OF 1993 The State of Maharashtra, through Special Land Acquisition Officer, Jalgaon. APPELLANT VERSUS Kisan Rupchand Rajput, R/o Jangipura, Tal. Jamner, District Jalgaon. RESPONDENT ..... Mr. S.D. Kaldate, AGP for the appellant. Mr. A.R. Kawade, advocate holding for Mr. P.R. Patil, advocate for the respondent. ..... WITH FIRST APPEAL NO. 427 OF 1993 The State of Maharashtra, through Special Land Acquisition ( 3 ) Officer, Jalgaon. APPELLANT VERSUS 1. Kahaniram Deochand, R/o Jangipura, Tq. Jamner, District Jalgaon. 2. Sonabai Deochand (Deceased) by her legal heirs. 2a. Kanhiram Deochand Pardeshi 2b. Narayan Deochand Pardeshi 2c. Hari Deochand Pardeshi 2a to 2c are r/o Jangipura, Tal. Jamner, Dist. Jalgaon. RESPONDENTS ..... Mr. S.D. Kaldate, AGP for the appellant. Mr. A.R. Kawade, advocate holding for Mr. P.R. Patil, advocate for respondent No. 2-c. ..... WITH FIRST APPEAL NO. 428 OF 1993 The State of Maharashtra, through Special Land Acquisition Officer, Jalgaon. APPELLANT VERSUS Shri Ratan Kisan Pardeshi, R/o Jangipura, Tal. Jamner, District Jalgaon. RESPONDENT ..... Mr. S.D. Kaldate, AGP for the appellant. Mr. B.R. Warma, advocate for the respondent. ..... ( 4 ) WITH FIRST APPEAL NO. 429 OF 1993 The State of Maharashtra, through Special Land Acquisition Officer, Jalgaon. APPELLANT VERSUS Devilal Fakirchand Rajput, R/o Jangipura, Tal. Jamner, District Jalgaon. RESPONDENT ..... Mr. S.D. Kaldate, AGP for the appellant. Mr. A.R. Kawade, advocate holding for Mr. P.R. Patil, advocate for the respondent. ..... [CORAM : V.R. KINGAONKAR, J.] [DATE OF JUDGEMENT RESERVED : 26th November, 2009] [DATE OF JUDGEMENT PRONOUNCED : 3rd December, 2009] JUDGEMENT : 1. These appeals arise out of common judgements rendered by the learned Civil Judge (S.D.), in proceedings of Land Acquisition References under section 18 of the Land Acquisition Act, 1894. The Reference Court allowed the reference applications and directed ( 5 ) payment of enhanced compensation to the respondents. 2. Certain agricultural lands of the respondents were acquired for public purpose, namely, for percolation tank situated at Jagipura (Dist. Jalgaon). Notification under section 4 of the Land Acquisition Act was issued on 4th July, 1985. The Special Land Acquisition Officer rendered common award on 14th July, 1987. The Special Land Acquisition Officer classified the acquired lands in eight (8) groups as per the land revenue assessment. The compensation was determined in accordance with the placement of the lands of the respondents in particular groups and having regard to comparable sale instances which were found during course of inquiry. 3. The respondents (claimants) were dis-satisfied due to the quantum of compensation awarded to them. They preferred Land Acquisition Reference Applications. The Reference Applications were decided together in two (2) groups. One of the groups comprised of L.A.R. No. 228/1989, L.A.R. No. 230/1989 and L.A.R. No. 31/1989 and ( 6 ) another being that of L.A.R. No. 221/1989, L.A.R. No. 222/1989 and L.A.R. No. 223/1989. Though separate judgements are rendered in both these groups, yet, the Reference Court considered identical material and gave similar reasons in support of its judgements. The Reference Court held that the market value of the acquired land was Rs. 45,000/- per hectare and, therefore, the respondents were held entitled to enhanced compensation. 4. Feeling aggrieved, the appellant/State has come up in appeals. 5. Heard learned A.G.P. Mr. Kaldate and counsel Mr. Warma and Mr. Kawade, for the parties. 6. The market value of the acquired lands was determined by the Reference Court on basis of oral evidence of the claimants and mainly on strength of sale instance pertaining to an agricultural land bearing Gat No. 1053 admeasuring 0 Hectare 24 Ares, situated at village Shendurni. Allegedly, the said land was ( 7 ) alienated by one Ragho s/o Ananda Bari to one Amrut s/o Ananda Gujar for consideration of Rs. 70,000/- by virtue of a registered sale-deed dated 20-06-1984. The Reference Court gave much importance to the said sale transaction. It is averred that said strip of land is situated at a distance of about 1 and ½ kms. from the acquired lands. Copy of the sale-deed (Exh-61A) was placed on record in L.A.R. Case No. 221/1989. That was admittedly a piece of bagayat land containing a well. On basis of such sale transaction, the Reference Court inferred that market value of bagayat land could be Rs. 70,000/- per hectare in the year 1984-85. The Reference Court came to the conclusion that the acquired lands were jirayat lands and, therefore, the market value thereof could be 2/3rd of the rate of said bagayat land. On such basis, the Reference Court held that the valuation of the acquired lands as done by the Special Land Acquisition Officer at rate of Rs. 10,000/- per hectare was palpably low and reasonably it could be Rs. 45,000/- per hectare. The Reference Court also enhanced compensation in respect of the trees situated in the acquired lands. ( 8 ) 7. Clinching question is whether the sale instance referred by the Reference Court could be regarded as a comparable sale instance for the purpose of determination of the market value of the acquired lands. First, it may be gathered that the vendor or vendee of the said sale-deed (Exh-16A) was not examined. The claimants simply filed a copy of the said sale-deed in one of the reference cases i.e. Land Acquisition Reference No. 221/1989. On perusal of the recitals of the copy of sale-deed (Exh-16A), it may be gathered that the small fragment of the land situated in the west- south corner of gat No. 1053 was alienated by vendor Ragho Ananda Bari (Koyalkar) alongwith 4 annas share to draw water. The transfer comprised of one oil engine of 5 HP, open space adjoining the well and share in the mango tree. It is also explicit that on northern side of the said fragment, there was the land of the purchaser i.e. Amrut Ananda Gujar. It is obvious that the purchaser had purchased that small fragment of the land because of availability of irrigation facility. In other words, the main intention of the purchaser was to ( 9 ) obtain the well water situated in the said fragment for irrigation of his another adjoining northern land. 8. The acquired lands were situated at Jangipura whereas the land gat No. 1053 is situated at village Shendurni. It is of common knowledge that small fragments of land are normally sold for higher price than the market value. For, such fragment is purchased by adjoining land owner with a view to annex such small fragments for convenient cultivation of the adjoining land owned by the purchaser. In the present case, the purchaser intended to utilize the small fragment mainly to avail irrigation facility of the well. Needless to say, the purchaser was not much interested in the cultivation of the small strip and was more interested in the water of the well situated in that land. The acquired lands are jirayat i.e. dry lands. There was no comparison, whatsoever, between the quality of the acquired lands and the land gat No. 1053 of which sale instance had been compared by the Reference Court. 9. The versions of the claimants are almost ( 10 ) identical with each other. The testimony of PW1 Kisan, for example, purports to show that the rate of adjacent fields/lands was around Rs. 40,000/- to Rs. 50,000/- per acre. He narrated that there were three mango trees in the acquired land. He also gave details of income which was being derived due to sale of mango fruits. He sought compensation at rate of Rs. 10,000/- per mango tree. He deposed that land gat No. 1053 was approximately at a distance of 1 km. from the acquired land. The examination-in-chief of other claimants is more or less the same. 10. It appears that the Reference Court overlooked cross-examination of the claimants. The claimants like PW Kisan gave vital admissions during course of the cross-examination. It is admitted by PW Kisan that there was no documentary evidence to show existence of mango trees in the acquired land. He admits, unequivocally, that there is no documentary evidence to show that the land gat No. 1053 is at a distance of about 1 km. from the acquired lands. He further admits that he did not file copy of 7/12 extract of the ( 11 ) acquired land. He, however, denied the suggestion that he intentionally did not file such copy because the acquired land was of low quality and fertility. It is pertinent to notice that neither of the claimant had filed copy of 7/12 extract nor substantiated the averments regarding existence of trees in their lands and the fertility thereof. Each of them admits as follows : “It is true that rainfall in Jalgaon district particularly in Jamner taluka is less. It is true that sometimes Jamner taluka was declared drought area. It is true that there is competition to purchase the land under irrigation in Jamner taluka. It is true that due to competition the rate of fields are increased.....” “It is true that it is mentioned in the ale- deed at Exh-11 in L.A.R.No.225/89 that the field block No. 1053 is under irrigation for the 12 months and there was well, one Kirloskar engine of 5 h.p., and one mango tree in the said land. It is true that due to ( 12 ) facilities above in the field, the price of the field is increased.” 11. The solitary sale instance referred by the claimants was not parallel to compare with the acquired lands. The admissions of the claimants would make it clear that the irrigated lands in Jamner taluka were much in demand and, therefore, due to competitive prices, the market value of such land was much more. As against this, the dry lands could not have competitive buyers in the market. The cultivation of dry lands in the drought-prone area like Jamner taluka could not be profitable. In the absence of any tangible evidence as regards quality of the soil of the acquired lands, except the interested versions of the claimants, the Reference Court should not have placed reliance on the sale transaction reflected from the copy of the sale- deed (Exh-16A). The Reference Court held that the claimants “have been successful in proving that they were not adequately compensated, though their lands were of superior quality. So also, no adequate compensation was granted to them for the trees.” How such inference ( 13 ) was drawn by the Reference Court is rather difficult to comprehend. It need not be reiterated that the claimants did not produce copies of the 7/12 extracts in order to prove since when the trees were in existence and what were the crops yielded in the acquired lands. The interested versions of the claimants were readily accepted by the Reference Court to infer that their lands were of “superior” quality. The expression “superior” as used by the Reference Court in order to describe quality of the acquired lands is rather meaningless. The Reference Court completely overlooked that the acquired lands were jirayat lands and were situated in drought-prone area. 12. At this juncture, I may reproduce comparative table in order to demonstrate as to how the Reference Court tilted the balance in favour of the claimants and the advocate appearing for them purposefully assisted the Reference Court in going astray in the context of enhancement of the compensation. The comparative table will demonstrate as to how the excessive compensation, even more than sought, was awarded to the claimants. ( 14 ) COMPARATIVE TABLE Sr No First Appeal No & LAR NO Name of claimant /respondent Descripti on of the land acquired Area of land acquire d H = R Market value determined by SLAO (Rs.Ps.) Compensat ion claimed by the claimant/ responden t while seeking reference under section 18 of L A ACT (Rs.Ps.) Market Value determine d by the Reference Court. (Rs.Ps.) I II III IV V VI VII VIII 1 424/1993 in LAR No. 230/1989 Siraram Sakharam Bari Gut No. 331/3(P) Jiryat Land 00.25 20,000/- per Hectare 30,000/- per Hectare 45,000/- Per Hectare 2 426/1993 in LAR No. 228/1989 Kisan Rupchand Rajput Gut No. 312(P) Jirayat Land 00.38 9,000/- per Hectare 15,000/- per Hectare 45,000/- per Hectare 3 426/1993 in LAR No. 228/1989 Kisan Rupchand Rajput Gut No. 330 (P) Bagayat Land 02.00 16,000/- per Hectare 30,000/- per Hectare 45,000/- per Hectare 4 426/1993 in LAR No. 228/1989 Kisan Rupchand Rajput Gut No. 330(P) 00.10 200/- 200/- - 5 429/1993 in LAR No. 231/1989 Devilal Fakirchand Rajput Gut No. 248 (P) Jiryat Land 00.78 12,000/- per Hectare 18,000/- per Hectare 45,000/- per Hectare 6 425/1993 in LAR No. 223/1989 1. Devchand Harsing (Died) 2.Vitthal Devchand (Died) Gut No. 302(P) Jirayat 10 P.K. 01.40 00.10 (PK) 14,000/- Per Hectare 20,000/- 200/- 45,000/- per Hectare 7 428/1993 in LAR No. 221/1989 Ratan Kisan Pardeshi Gut No. 328(P) Jiryat Land P.K. 01.35 00.10 (PK) 20,000/- Per Hectare 30,000/- per Hectare 45,000/- per Hectare ( 15 ) 8 427/1993 in LAR No. 222/1989 1. Kashiram Deochand 2. Sonabai Devchand( Died) Gut No. 303/2(P) Jirayat 03.00 14,000/- Per Hectare 20,000/- Per Hectare 45,000/- Per Hectare 13. A bare perusal of the columns No. (VII) and (VIII) will make it manifestly clear that much excessive compensation was determined by the Reference Court even much beyond the expectation of the claimants. It is no easy to decipher as to why this kind of abnormality might have occurred. It could not be without “meaningful” participation of the concerned advocate of the claimants that such excessive market value was determined by the Reference Court. Such instances raise question about integrity of the Bar and the Bench. 14. Be that may as it is, it is amply clear that the determination of the market value by the Reference Court is irrational and unsustainable. The respondents (claimants) failed to prove that the valuation determined by the Special Land Acquisition Officer was not in accordance with the market value of the acquired ( 16 ) land. The Apex Court in “Gafar and others v. Moradabad Development Authority and another” (2007 AIR SCW 5372), held that where two (2) sale-deeds relied on by the claimant in support of claimant for enhancement were found to be not comparable or reliable, the enhancement by the Reference Court on the basis of such sale transactions was unsustainable. The ratio of the given case is squarely applicable to the fact situation of the present case. 15. Mr. A.R. Kawade referred to certain observations in “Kashinath Atmaram Kothavade v. State of Maharashtra” (1992 Mh.L.J. 987). A Division Bench of this Court observed that sale transaction in respect of small developed plot could be taken into account when the suit land, though was larger in area was situated in residentially and commercially developed area. With due respect, there is no similarity in the fact situation of the present case and the facts obtained in “Kashinath Atmaram Kothavade” (supra). In fully developed residential zone, the acquired land could be valued in ( 17 ) accordance with the rate of open plots and not in accordance with the market value of the agricultural lands. That is the basic difference which does not allow me to apply the ratio of the above said case to the fact situation of the present case. Mr. Kawade further invited my attention to certain observations in “Church of South India Trust Assn. v. Land Acquisition Officer & Tehsildar” (2006) 9 SCC 676. The Apex Court considered the purport of section 51A of the Land Acquisition Act, 1894 in the given case. The Apex Court held that the registered sale-deeds of exemplars must be admitted in evidence and considered by the Court in accordance with the principles laid down in “Land Acquisition Officer & Mandal Revenue Officer v. Narasaiah” (2001) 3 SCC 530 and “Cement Corporation of India Ltd. v. Purya” (2004) 8 SCC 270. The admissibility of sale-deed (Exh-16A/Exh-11) is not the subject matter of dispute in the present case. The question is whether proof and the circumstances in which a particular sale transaction had taken place can be displaced with merely on production of the copy of the sale-deed. The Apex Court in ( 18 ) “Special Deputy Collector and another etc. v. Kurra Sambasiva Rao and others, etc.” (AIR 1997 S.C. 2625), considered the purport of section 51A of the Land Acquisition Act, 1894. It is observed : “The best evidence of the value of property are the sale transaction in respect of the acquired land to which the claimant himself is a party; the time at which the property comes to be sold, the purpose for which it is sold; nature of the consideration; and the manner in which the transaction came to be brought out. They are all relevant factors. In the absence of such a sale deed relating to the acquired land, the sale transactions relating to the neighbouring lands in the vicinity of the acquired land. In that case, the features required to be present are; it must be within a reasonable time of the date of the notification; it must be a bona fide transaction; it should be a sale of land similar to the land acquired or land adjacent to the land acquired; and it should possess similar advantageous features. These are relevant features to be taken into consideration to prove the market value of the acquired land as on the date of the ( 19 ) notification published under Section 4 (1) of the Act. This would be established by examining either the vendor or the vendee. If it is proved that they are not available, the scribe of the document may also be examined in that behalf. Section 51-A of the Act only dispenses with the production of the original sale deed and directs to receive certified copy for the reason that parties to the sale transaction would be reluctant to part with the original sale deed since acquisition proceedings would take long time before award of the compensation attains finality and in the meanwhile the owner of the sale deed is precluded from using the same for other purposes vis-a-vis this land. The marking of the certified copy is per se is not admissible in evidence unless it is duly proved and the witnesses, viz., the vendor or the vendee, are examined. This principle has been repeated in a catena of subsequent decisions of this Court.” 16. In “State of U.P. and another v. Rajendra Singh” (1996) 7 SCC 347, the Apex Court held that burden lies on the claimant like plaintiff to prove proper, just and adequate compensation to the acquired land. It ( 20 ) is further observed that sale transactions are not evidence unless the vendor or the vendee has been examined in the court. It is observed that the Court should carefully evaluate the evidence and determine market value avoiding needless burden on the exchequer. In “Manohar Lal v. State of Punjab” 1995 Supp (4) SCC 665, the Apex Court set out factors to be considered by the Court while determining the market value of the acquired land. There are cases and cases. Considering the fact situation obtained in the group of present cases, it is explicit that the Reference Court failed to properly determine the market value of the acquired lands. The interested versions of the claimants could not be accepted as gospel truth. Nor the sale transaction in respect of land gat No. 1053 could be regarded as a comparable sale instance. In view of these circumstances, the impugned judgements are unsustainable. The Reference Court ought to have dismissed the reference applications for want of adequate proof to substantiate enhancement of the compensation. ( 21 ) 17. In the result, the appeals are allowed. The impugned judgements and awards are set aside with costs of both the Courts as well as exemplary costs of Rs. 10,000/- in each appeal. The Collector shall take immediate steps for recovery of the excessive amounts of compensation paid to the respondents and the costs and compensatory costs awarded as above. [ V.R. KINGAONKAR ] JUDGE NPJ/fa424-93-group