1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL No. 56/1994 Raibhan s/o Shivram Aher, Age : Major, Occu. Agril. R/o Loni Khurd, Tq.Shrirampur, Dist. Ahmednagar. ...Appellant. Versus The State of Maharashtra, (through Govt. Pleader, High Court, Bench at Aurangabad) ...Respondent. CORAM : A.V. NIRGUDE, J. Date : 29th June, 2010 ORAL JUDGMENT : 1 This appeal is filed against the judgment and award passed by the learned Civil Judge (Senior Division), at Shrirampur in Land Acquisition Reference No.73/991. The appellant filed the reference under section 18 of the Land Acquisition Act against the award dated 19/09/1986 passed by the learned Special Land Acquisition Officer, Ahmednagar. The Government acquired the appellant's land admeasuring 3H 95R from Gat No. 83 of village Loni (Kh.) for the purpose of establishing a percolation Tank. The S.L.A.O. awarded compensation of Rs.36,392.25. The appellant claimed Rs. 40,000/- per acre towards market price of the land which went under acquisition. The appellant made some other claims in the reference but at this stage, I am not discussing them because the appellant is not pressing the appeal in that regard. 2 2 The State of Maharashtra opposed the reference asserting that the compensation awarded to the appellant was just and as per the market value of the land at the relevant time. 3 The learned judge of the lower court recorded evidence of the appellant and his witnesses. He took on record certain documents but eventually dismissed the reference. As against this judgment and award, this appeal is filed. 4 There is no dispute about the area of the land (admeasuring 3 H and 95 R.) which the Government acquired from the appellant. It was one piece land. It is obvious that this piece of land was quite large in size. In support of his case, the appellant recorded his deposition in which he stated categorically that in this land, he had a well since 1971, constructed in stones. He said, he was taking crops using well water. He said, the Government took possession of the land in question in May, 1997. However,he said, the notification of acquisition of the land was issued in the year 1980-1981. He said, since 1977, he was unable to take crops in the land in question. In the cross examination, he admitted that in the land in question, there used to be a water tank belonging to the adjoining sugar factory. The learned judge of the trial court while appreciating the case of the appellant, observed in his judgment, “the claimant has categorically admitted that his land was not under cultivation since 1977 as water was stored in his land by sugar factory”. This finding of the learned judge is patently erroneous. The appellant in his deposition did not say that he could not cultivate land since 1977 because it was sub- merged under water since then. His only admission in this regard is that there happened to be a water tank belonging to the sugar factory on this land. As said above, this land is a piece admeasuring more than 10 acres and the sugar factory could not have had a water tank all over his land. There is nothing on record to show and the 3 respondent State of Maharashtra ought to have shown to the Court as to what was the area of the Tank that was situated on the land belonging to the appellant and how it affected the productivity of the land. All that the appellant stated in his deposition is that since the Government took possession of the land in question in 1977, he could not cultivate the same. He thereby suggested that the Government took possession of the land in 1977 ahead of issuing notification under section 4 of the Act. The question was, when did the Government take possession of the land? In this regard, it is only the appellant’s word that has gone on record. There is no effective cross examination on this point. Neither the respondent led their independent evidence on this point. The evidence thus indicates that this land in question went in possession of the Government in 1977 and so the appellant could not cultivate it. The learned judge went under a wrong impression that the entire land of the appellant had inundated by the sugar factory’s water tank. Due to this misunderstanding, the learned judge of the trial Court also observed as under. “The water was stored by sugar factory in the acquired land and the Government has no concern with it. The claimants can not blame Government for storing of water in their land by sugar factory.” 5 These observations as said above are patently erroneous looking to the evidence that has come on record. Besides the appellant was not putting any blame on the Government for his inability to cultivate the land since 1977 till it was acquired. The claimant did not make any claim in respect of loss occurred to him for keeping the land underutilized since 1977. So, it is clear that the finding of the trial Court that the land in question was submerged with water since 1977 till the notification under section 4 was issued in 1981 is erroneous. 4 6 The main question before the Court was and is: what was the market price of the land in question on the date of notification under section 4? The learned judge under a wrong belief that the land in question was submerged with water from 1977 to 1981, refused to appreciate the evidence of the appellant in respect of the market value of the land. He observed in this regard as under. “The land was not under cultivation since 1977 till 1981. Therefore, Court has to consider the sale transaction of the land under water and not under cultivation.” These observations again are patently erroneous and devoid of any sense. 7 Let me now examine the evidence that has come on record in respect of the market value of the land in question on the date of notification under section 4. 8 As said above, the notification under section 4 was issued in 1981. The appellant placed on record a sale instance of land of village Loni which was sold in 1980, he examined the purchaser, vendor and the witness of this sale transaction. He even brought on record the original sale deed. A small piece of land ad measuring 20 gunthas land was sold to purchaser Narmadabai on 18th December, 1980 for Rs.14,000/-. The sale deed shows that the land that was sold, had facility of well water irrigation. The purchaser of the land Narmadabai recorded her deposition and asserted that the land was situated quite close to the land in question. In the cross examination, however, she admitted the land which she purchased, was situated within local limits of the village Loni whereas the land in question was situated outside the local limits of the village. The question therefore, is whether this sale instance is relevant for the purpose of ascertaining the market value of the land in question. The learned advocate appearing for the State of Maharashtra asserted that this land was too small compared to the land in question and besides, it was situated very close to the 5 village. These submissions are factually correct. Yet, in my view, this sale instance is quite relevant material for deciding the market value of the land in question. Due to proximity of this land to the village, certainly this land would be dearer than the land in question. Regard must be had to this aspect while deciding the market value of the land in question. The difference in size of the lands in my view would not deter me from utilizing the sale instance for determining market value of the land in question. There are two reasons for this. The land in question was an agricultural land and the land of the sale instance was also an agricultural land. The land in question had facility of well water irrigation whereas the land of the sale instance also had facility of well water irrigation. Besides, the land of sale instance was quite proximate to the land in question. The lands thus were similar in character, reasonably proximus to each other, had similar amenities and advantages to the extent of agricultural use and lastly a land of sale instance was sold a few months prior to the issuance of notification under section 4 of the Act. The land of sale instance fetched about Rs.28,000/- per acre which comes to Rs.70,000/- per hector. I am inclined to hold that the land of sale instance due to its proximity to the residential area of the village and the smallness of the size, at the relevant time, had almost double the market price compared to the lands which are not proximate to the village and which are larger in size. I am therefore, inclined to hold that at the relevant time, the market value of the land in question could have been Rs.14,000/- per acre. The appeal therefore, succeeds to that extent. ORDER The appeal is partly allowed. The State of Maharashtra shall pay additional compensation to the appellant @ Rs.14,000/- per acre (Rs.35,000/- per hector). In addition to this, all statutory benefits such as solatium 6 and interest as per the provisions of the Act, should also follow. The Registry shall prepare award accordingly. The State of Maharashtra also shall to pay cost of this appeal to the appellant. [A.V. NIRGUDE, J.] tsk/fa56.94/ok