- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.51/1994 Tulsiram s/o Babaji Chaudhari, died through his L.Rs. 1A) Savleram Tulsiram Chaudhari, age major, 1B) Babaji Tulsiram Chaudhari, age major. 1C) Vitthal Tulsiram Chaudhari, age major, 1D) Parvatabai w/o Tulsiram Chaudhari, age major, 1E) Anusayabai w/o Tulsiram Chaudhari, age major, All r/o Akola Tq.Akola Dist.Ahmednagar. ...Appellants.. Versus The State of Maharashtra. ...Respondent... ..... Shri S.K. Shinde, Advocate for appellants. Shri Dilip Bankar Patil, AGP for respondent. ..... CORAM: R.K. DESHPANDE, J. DATE: 23.07.2009 - 2 - ORAL JUDGMENT: 1] Heard respective counsels. 2] This appeal challenges the judgment and order dated 29.6.1993 passed by the learned Civil Judge, Senior Division, Sangamner Dist.Ahmednagar, in Land Reference Case No.6/1990 whereby it refused to enhance the compensation in respect of land under acquisition at the rate of Rs.12,500/- per Acre. 3] The facts leading to the case are as under: The land in question is Survey No.223/2 admeasuring 68 R situated at village Akole Tq.Akole Dist.Ahmednagar. A land acquisition notification u/s 4 of the Land Acquisition Act, 1894, was issued on 22.6.1978 for acquisition of land for the purposes of construction of irrigation colony. The said notification was published in the official gazette on 27.9.1979. However, prior to that, possession of the land was taken on 21.10.1977. The Special Land Acquisition Officer passed an award on 25.3.1980 determining the market value of the land in question at Rs.5083/- as against the claim of the appellants – claimants at the rate of Rs.50,000/- per hectare. Being dissatisfied by this award, the appellants preferred Land Acquisition Reference Case No.6/1990, which was tried and decided by the learned Civil Judge, Senior Division, Sangamner, who enhanced the compensation payable in respect of the land in question at Rs.10,000/- per Acre. Before the Reference Court, the appellants claimed total compensation of Rs.96,957/- for the land under acquisition. In support of their claim, the appellants examined original appellant i.e. Tulsiram Babaji Chaudhari as PW 1, one Tarabai P.W.2, who proved saledeed (Exh.28) dated 28.12.1981 for sale transaction of Rs.15,000/- for sale of 30 Gunthas land. The appellants also examined P.W. 3 Mhatarba, who proved saledeed of the year 1979 (Exh.33) - 3 - indicating price of Rs.10,000/- for 20 Gunthas land. The appellants examined P.W.4 Bharat to prove Exhibit 38 – the saledeed dated 25.2.1977 evidencing sale of 40 Gunthas land for Rs.12,500/-. The learned Judge of the Reference Court relied upon saledeed (Exh.38) to determine the market value of the land in question to be most relevant instance of sale being in close proximity with the date of issuance of notification u/s 4 on 22.6.1978. However, the learned Judge of the Reference Court made certain deductions from the market value of the land in respect of the land in question on the ground that the land under Exhibit 38 was purchased by the cooperative housing society for the business purpose and was adjoining to a milk dairy and it was acquired to run the chilling plant and utilise the office building. Since, according to the learned Judge of the Reference Court, the land under dispute was acquired for construction of residential colony of the employees of the irrigation department, its price can not be directly compared with the land under saledeed (Exh.38). Hence, the learned Judge of the Reference Court reduced the market value of the land from Rs.12,500/- per Acre to Rs.10,000/- per Acre. 4] Shri S.K. Shinde, the learned counsel appearing for the appellants, contended that there was no reason for the Reference Court to make such a distinction to reduce the price or allow the deductions from the price exhibited in the saledeed at Exhibit 38, particularly when the said saledeed has been accepted as the basis for determination of market value of the land. According to the learned counsel, the distinction sought to be made is not based upon the valid and relevant considerations. 5] As against this, Shri Dilip Bankar Patil, the learned Assistant Government Pleader, contended that the Reference Court was right in allowing the deductions from the market value of the land exhibited in Exhibit 38. According to him, the trial Court has, after taking into consideration the - 4 - location of the land and other relevant factors, determined the price, which can not be said to be unreasonable or unjust. Similarly, he contends that the findings recorded by the learned Judge of the Reference Court are not perverse and the view taken is a possible view and, therefore, this Court should not interfere in the order of the trial Court. 6] With the assistance of the learned counsel appearing for the parties, I have gone through the saledeeds at Exhibits 28, 33 and 38 as well as the oral evidence laid by the appellants and that of P.W. 4 Bharat, who proved the saledeed (Exh.38). The trial Court has accepted Exhibit 38 to be the relevant for determining the market value of the land in question. However, the question is whether the learned Judge of the Reference Court was right in making some deductions from the market price exhibited by the saledeed at Exhibit 38. Although it is an agricultural land, its potentiality to use for non-agricultural purpose is also a relevant and important factor, which is required to be taken into consideration. The saledeed in question is of 25.2.1977 and the acquisition is for the purposes of construction of residential colony of the employees in irrigation department. The original appellant in his examination in chief has stated that the land acquired is about a furlong away from village Akole and there is a ITI college located at a distance of half furlong from the land under acquisition. The college is located even prior to the date of notification. He has further stated that there are residential houses in the adjoining lands. He has also deposed that the land in question was a Bagayat land and there are residential houses in the remaining portion of the same land since last 15 years. Although he admitted that the portion of the land under acquisition was not abutting to the highway, he states that the remaining portion of the land in question is abutting to the highway and there is a road connecting the highway from the lands under acquisition. There is no cross examination on this aspect. There is no reason to doubt the testimony of the original appellant. In my view, therefore, the trial Court ought to have accepted the evidence of the original - 5 - appellant in support of his claim for market value of the land at Rs.12,500/- per Acre. 7] The contention of the learned Assistant Government Pleader that the land under Exhibit 38 was purchased by the cooperative society for the business purpose and to run the chilling plant and use the office building, was the relevant factor for granting deductions, in my view, can not be accepted. The learned Judge of the Reference Court has totally ignored the aspect of potentiality of the land for the use of non-agricultural purpose, the location of the land and the developments, which have taken place surrounding the land in question. In my opinion, therefore, the Reference Court has committed an error in appreciation of the evidence brought on record. It has failed to apply its mind to the relevant aspects of the matter. The instant appeal, therefore, needs to be allowed. 8] In the result, the instant appeal is allowed. It is held that the appellants are entitled to market value of the land Survey No.223/2 admeasuring 68 R situated at village Akole Tq.Akole Dist.Ahmednagar at Rs. 12,500/- per Acre. The other benefits available to the appellants namely additional compensation, solatium and interest, shall be determined as per order passed by the Reference Court by taking into consideration the market value of the land at Rs.12,500/- per Acre. The parties shall bear their own costs. (R.K. Deshpande, J.) ndk/c2370940