1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.2515 OF 2011 Shantabai W/o.Padmakar Kulkarni, Age-42 years, Occu-Agriculturist and Household, R/o.Bhatagali, Tq.Omerga, Dist. Osmanabad APPELLANT VERSUS 1. State of Maharashtra, Through the Collector, Osmanabad, 2. The Executive Engineer, Lower Terna Project, (P.T. And I.T.) Latur RESPONDENTS Mr.C.R.Deshpande, learned counsel for the appellant. Mrs.V.A.Shinde, learned A.G.P. for respondent State (CORAM : A.V.POTDAR, J.) DATE : 24/11/2011 ORAL JUDGMENT : 1. Heard learned counsel for the appellant. 2. Admit. By consent of the parties, heard finally at the stage of admission. 3. Challenge in this appeal is to the judgment and award passed 2 in L.A.R.No.171/2004, passed by the Jt.Civil Judge, S.D.Omerga, by which the reference u/s. 18, preferred by the appellant/claimant was partly allowed. It is claimed that the claimant is entitle to recover enhanced compensation @ 20,000/- for her acquired land after deducting the amount of compensation already received by her from the Land Acquisition Officer with benefits. By the present appeal, by the appellant/original claimant is before this Court for enhancement of amount of compensation awarded by the learned Joint Civil Judge, S.D. Omerga. 4. It is not under dispute that the appellant/claimant is the owner and occupant of land bearing S.No.1 admeasuring about 0.36 R area from village Bhatagali, Tal.Omerga, Dist.Osmanabad. This land was acquired for Lower Terna Project, which is allegedly situated on the bank of river Terna. It is also not under dispute that notification u/s. 4 of The Land Acquisition Act was published on 21/02/1989, The declaration u/s. 6 was published on 15/08/1991 and the award was passed by the Land Acquisition Officer on 14/08/1993. At that time, notices u/s. 12(2) of The Land Acquisition Act were served on the appellant/claimant on 05/11/1992 by which she was offered the compensation about the land acquired in the sum of Rs.11,024/- per acre, which according to the appellant/claimant was inadequate, of low price and hence reference was preferred u/s. 18 of The Land Acquisition Act, which after regular process, appeared initially before the District Court, 3 Osmanabad and after establishment of the Court at Omerga, the reference was transferred to the Jt.Civil Judge, S.D.Omerga and was re-numbered as land acquisition reference no.171/2004. 5. After the reference appeared before the Lower Court, notices were issued on the respondents/opponents, who have opposed the reference by filing written statement at Exh.5, wherein they have objected the enhancement as claimed by the appellant/claimant, as according to them, the award passed by the Land Acquisition Officer was correct and on considering the sale instances, quality of the land, prevailing market price, the Land Acquisition Officer has passed the appropriate award, which need not be disturbed by the Reference Court. It appears that after the issues were framed by the Reference Court, the parties were put to trial. Record and proceeding received from the Trial Court reveals that in support of the claim of the claimant, she examined herself at Exh.29, produced copy of the award at Exh.27, statement at Exh.28 and quoted copy of the sale instance dated 06/12/1982 from village Mangrul, which is situated at the distance of 2 ½ km away from the land acquired. Perusal of this sale-deed shows that the area of the sale instance is 47R, having one electric motor of 3 HP and 400ft pipeline. In the said sale instance,there is also reference of one well. In the light of this evidence, the Reference Court has enhanced the compensation to the tune of Rs.20,000/- per acre. 6. In this background, I have heard learned counsel for 4 appellant/original claimant and learned A.G.P. for State. Learned counsel for appellant would urge that the land acquired by the respondent is an irrigated land. They were cultivating sugar-cane crop in the land acquired. At this juncture, this submission can not be accepted at all as perusal of the record received from the Lower court does not show that to substantiate these submissions, any documentary record was produced before the Lower Court to prove that in fact there was sugar-cane crop cultivated by the appellant/claimant at the relevant time. The best piece of evidence to be tendered before the Lower Court is 7/12 extract to prove that in fact sugar-cane crop was cultivated in the land acquired. Learned counsel would further urge that the land acquired was in the jurisdiction of Killari Sugar Factory. Merely because the land is situated in the jurisdiction of a sugar-cane factory, it can not be said that the holder of the land used to cultivate the crop of sugar-cane in her land, in absence of any documentary proof like the revenue record. Learned counsel would further urge that National Highway no.4 is passing from village Makrani. Absolutely no record is produced to that effect to show what is the distance of that National Highway and the land acquired. Second aspect, what is the distance between village Bhatgali and Makrani, is not brought on record. Learned counsel would further urge that the land is situated on the bank of river Terna. Considering this aspect, it is to be held and inferred that the land acquired was an irrigated land and is capable of taking cash crops from the said acquired land. Absolutely, no 5 record is produced before the Court to that effect. At this juncture, it is to be noted that before the Reference Court, the proceeding in the land acquisition proceeding were called for. The award passed by the Land Acquisition Officer is on record. This award clearly indicates that the land acquired is a dry land. 7. Learned counsel would further urge that the sale instance quoted by the claimant before the Lower Court wherein the price of the land is shown @ 25,000/-, that sale instance is of the year 1982 while the notification is of the year 1989. Relying on the ratio led down by the Division Bench of this Court in the matter of State versus Bhausaheb Dadasaheb Misal, 1996(1) Mah.L.R. 292, wherein it is observed by the Division Bench of this Court that 10% increase for every year is to be allowed towards increase in the price while considering the sale instance quoted during the proceeding before the Reference Court. No doubt, the observations of the Division Bench of this Court in the said matter can not be overrulled. But at the same time, the criteria led down by the Apex Court in the matter of Chimanlal Hargovinddas versus Special Land Acquisition Officer, Poona and Another, (1988) 3 Supreme Court Cases 751, in which in para no.4, the Apex Court has given the guidelines about the factors to be considered at the time of valuing the land for compensation and the numbers to be kept in mind by the Court in determining the value of the land for ready reference, it is necessary to quote those observations, which read as follows : 6 The following factors must be etched on the mental screen: (1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before 535 it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court. (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under sec. 4 of the Land Acquisition Act (dates of Notifications under secs. 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under sec. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sell the land at a reasonable price. (7) In doing so by the instances method, the Court has to 7 correlate the market value reflected in the most comparable instance which provides the index of market value. (8) only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land). (9) Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (l0) The most comparable instances out of the genuine instances have to be identified on the following considerations: (i) proximity from time angle, (ii) proximity from situation angle. (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has there after to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors: Plus factors Minus factors 1. smallness of size. 1. largeness of area. 2. proximity to a road. 2. situation in the interior at a distances from the Road. 8 3. frontage on a road. 3. narrow strip of land with very small frontage compared to death. 4. nearness to developed area. 4. lower level requiring the depressed portion to be filled up. 5. regular shape. 5. remoteness from developed locality. 6. level vis-a-vis land 6. some special under acquisition. disadvantageous factor which would deter a purchaser. 7. special value for an owner of an adjoining property to whom it may have some very special advantage. (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own facts pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself. (17) These are general guidelines to be applied with understanding informed with common sense. 9 8. Bearing in mind the guidelines provided in the matter of State versus Bhausaheb (cited supra), the facts recorded before the Reference Court required to be considered in this appeal. In para no.17,18 and 19 of the judgment of the Reference Court, the Reference Court has discussed the evidence and came to the conclusion that the compensation awarded by the Land Acquisition Officer, required to be enhanced from Rs.11,024/- to Rs.20,000/- per acre. Considering the rising prices of the land in that area, enhanced compensation awarded by the Land Acquisition Officer to that effect. 9. The sale instance, which was quoted by the claimant/appellant before the Lower Court, is a sale instance about the irrigated land wherein the well is situated with the facility of the electric motor and the pipe-line is provided to irrigate the land concerned. Clear reading of the sale instance, it demonstrates that while considering the price of the land, the price of the standing trees was also considered in the sale instance. As against this, as per the award, the land acquired of the appellant/claimant is a dry land. One may take judicial note of the fact that the value of the irrigated land is always on the higher side than the value of the dry land. Nothing is placed on record to consider that the land acquired is not a dry land/non irrigated land, but in fact an irrigated land. Considering this aspect, which is well discussed in para no.19 of the judgment the Reference Court, this Court does not find any fault with that discussion while enhancing the compensation awarded by the Land 10 Acquisition Officer, but within the limits of fixing the price @ 20,000/- per acre. Considering the observations in para no.4 in the matter of Chimanlal versus S.L.A.O. as cited supra, while considering the potentiality of the land, which may fix the value at the relevant time, other than this sale instance, nothing is brought on record by the learned counsel for appellant that considering the area of the land, the price to be fixed as per the rate per R and not as per the rate per acre or per hectre. The evidence led before the Reference Court is silent on the point that the adjoining lands to the land acquired were converted for non-agricultural purpose. In the surrounding area, the agricultural lands were converted for non- agricultural purpose. If it is so, then it can not be inferred that there is non agricultural potentiality of the land acquired by the respondents. Considering this aspect, even though, in detail, the Reference Court has not observed the guidelines given in the judgment of Chimanlal (cited supra), still the Reference Court has considered the evidence led by the appellant/claimant. Considering this aspect, this Court does not feel that the judgment and award passed by the learned Lower Court require any interference at the hands of this Court. In the light of this, this appeal sans any merit, stands dismissed. (A.V.POTDAR, J.) khs/NOV.2011/fa-2515-11