1 F.A.NO.143.95+1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 143 OF 1995 The State of Maharashtra, The Collector, Jalgaon, District Jalgaon APPELLANT V E R S U S Shri Padmakar Govind Patil, Age 44 years, Occupation Agriculturist and Service, R/o Ner Digar, Taluka Jamner District Jalgaon RESPONDENT WITH FIRST APPEAL NO. 144 OF 1995 The State of Maharashtra, The Collector, Jalgaon, District Jalgaon APPELLANT V E R S U S Shri Madhukar Govind Patil, Age 40 years, Occupation Agriculturist, R/o Ner Digar Taluka Jamner District Jalgaon RESPONDENT ... Mrs.V.A.More,A.G.P for Appellant Mr. Vinod Patil,Advocate holding for Mr. Vijay Y.Patil,Advocate for respondent ... CORAM : A.V. NIRGUDE, J. DATED : 25TH JANUARY, 2010 ORAL JUDGMENT : 1] This appeal is filed against the Judgment and 2 F.A.NO.143.95+1 Award passed under section 18 of the Land Acquisition Act, by the learned Civil Judge Senior Division, Jalgaon in Land Reference Case Nos. 504 of 1990 and 49 of 1991. The facts leading to the references can be stated as under : 2] The land Gut No.259 situated at village Neri- Digar Taluka Jamner, District Jalgaon admeasuring 5.97 Hectare was owned by the respondents in these two cases. Out of this land area of 2.62 Hectare was acquired by the Government for extension of Gaothan. The Notification under section 4 of the Land Acquisition Act was published on 28th August, 1986. After notices under sections 6,9 and 12 of the Land Acquisition Act were served on the claimants, an award was passed on 10th February 1988. The respondents/claimants challenged the Award by filing the references. Their main contention was that the learned Special Land Acquisition Officer ignored the fact that the land was situated very close to the village and so had non-agricultural potentiality. They placed on record a sale instance of the same village, in which small piece of land about 10000 Sq Feet was sold at the rate of Rs.7.75 per Square feet, for the purpose of construction of branch office of the District Co-Operative Bank. The learned Judge 3 F.A.NO.143.95+1 accepted the case of the respondent/claimant and awarded Rs.5/- per Square feet as compensation, but excluded the sum of Rs. 25% of the amount towards development charges. 3] The learned A.G.P. Mrs. More, appearing for the appellant-State challenged the correctness and legality of the award. Her main contention is that the learned Judge of the lower Court could not have placed reliance on the sale instance which was of a small plot of the land compared to the area of the acquired land. Secondly, she said, the land till its acquisition was still an agricultural land and so the learned Judge erred in presuming that the land could have been used for the non-agricultural purpose. The third contention raised by Mrs. More, is that the respondent claimant had not produced on record the requisite material to show that the land in question is situated near the S.T.Bus Stand, Dak Bungalow etc. 4] Indeed, the land that was acquired was a larger area than the land sold under sale instance Exh.21. The land sold under sale instance was about 10 R in area; whereas the acquired land’s area is 262 R. The difference is quite significant and so there is possibility of advancing argument that the large plot of land would not possibly fetch a price at the same rate at which smaller plot is sold. The learned Judge of the lower 4 F.A.NO.143.95+1 court however rightly placed reliance on the judgment of Our High Court in the case The State of Maharashtra (Public Works Department) Versus Bapurao Dnyanoba Chiddarwar and others reported in AIR 1973 Bombay, 231. The following passage from the said judgment could be used for the purpose of reference- The proposition that large area of land can not possibly fetch a price at the same rate at which small plots are sold is not an absolute proposition and in given circumstances it would be permissible to take into account the price fetched by small plots of lands especially in a case where compensation for land with building potentiality is to be determined and the land is to be valued. The proper method of determining compensation in respect of land situated within the Municipal limits in a place where there is scarcity of housing accommodation and the land is surrounded by residential localities would be to find out how many residential plots of reasonable size could be made out of the field in question. Allowance should be made for the land which would be required to be left vacant on account of roads, lanes, park etc. and the land which would then be available for being sold as plots should be taken into account and to this land must be applied the rate at which normally plots were sold at about the date of notification under section 4 of the Land Acquisition Act in adjoining areas but from the price so calculated the cost of development should be deducted and the price so arrived could be treated as compensation for the whole of the acquired land. Merely because the land is agricultural and it is labelled as such does not necessarily mean that the land must be valued as agricultural land. In view of the law laid down by our High Court mentioned above, it could be safely said that view taken by the learned Judge of the Reference Court is correct. Besides, he has proportionately reduced the rate of acquired land 5 F.A.NO.143.95+1 as it is much larger in the size. The sale instance was at the rate of 7.75 per Sq. Ft. but the learned Judge of the Reference Court rightly reduced the rate by Rs.2.50 per Sq. Ft. because of difference in size of two pieces of the land. This would nullify the argument of Mrs. More that the sale instance was not of comparable land. 5] Indeed, the land in question at the time of acquisition and even at the time of issuance of notification under section 4 of the Land Acquisition Act was not still in agricultural use. The question was whether this land was having non agricultural use capability. The learned Judge held that the land had such capability mainly because it was situated close to the village and secondly because it was acquired for extension of Gaothan. Had this land been away from Gaothan the respondents/claimants could have not stated that this land had non-agricultural use capability. It is common knowledge that as the population of a village or a town or a city increases, the lands laying on the outskirts of such place would became vulnerable for use other than agriculture. The growing population tends to occupy adjoining lands mainly for residential purpose and thereafter for other purpose such as factories, Bus stand, play ground and parks etc. The learned Judge of the lower Court thus did not commit any error while coming to conclusion that the land in question had capability of non-agricultural use. 6 F.A.NO.143.95+1 6] The third point raised by Mrs. More: The respondent adduced evidence in the form of their own depositions in which they specifically stated that the land in question was adjoining to Jalgaon-Pune High-way. They further stated that the Market Committee, a Ginning and Pressing Factory and the S.T. Stand were situated on the east side of the land in question. They further stated that there are shops and plots towards the east of their land and that the Dak Bungalow was situated at a distance of 100 feet towards North. This statement has not been controverted in the cross examination. So, the deposition of the claimants on this point have gone unchallenged. So Smt. More has no scope to advance on this point. In view of this, both the appeals should fail. The Second Appeals are dismissed with costs. Sd/- (A.V. NIRGUDE, J.) MTK/ ok