1 F.A.No.1740 of 2007 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.1740 OF 2007 Rama s/o Dhondiba Thombre, Age 35 years, Occu.Agriculture, R/o Bhosi, Taluka Jintur, District Parbhani ..APPELLANT (Orig.Petitioner VERUSS 1. The State of Maharashtra 2. The Special Land Acquisition Officer, P.T.& M.I.W.Parbhani ..RESPNDENTS (Orig.Respondents) Mr S.K.Adkine, Advocate for appellant Mr P.P.More, Assistant Government Pleader for respondents 1 and 2 CORAM : MRS MRIDULA BHATKAR, J. DATE : 24th AUGUST, 2011 ORAL JUDGMENT (PER MRIDULA BHATKAR, J.) 1. This appeal is directed against the judgment and order dated 7.4.1993 in L.A.R.No.268 of 1991 passed by Civil Judge, Senior Division, Parbhani while deciding the Reference filed under Section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”), for enhancement of the compensation amount. The appellant was the owner of the land Survey No.9 of village Bhosi, Taluka Jintur, District Parbhani. The land acquired by the respondent – authority is 4 hectares and 36-R for the construction of percolation tank. The 2 F.A.No.1740 of 2007 notification under Section 4 of the Act was issued by respondents on 24.1.1980. Award was passed in July 1981. The Special Land Acquisition Officer awarded the compensation at the rate of Rs.1,200/- per acre. Being aggrieved with the said award, a Reference was preferred by the appellant before the Civil Judge, Senior Division, Parbhani. Reference Court, after considering the evidence oral as well as documentary, partly allowed the reference by increasing the rate from Rs.1,200/- per acre to Rs.3,000/- per acre for the acquired land and awarded other consequential benefits to the appellant. In the appeal, appellant has contended that the compensation for the acquired land should be given at the rate of Rs.7,000/- per acre. 2. Learned Counsel appearing for the appellant has submitted that the Reference Court erred in appreciating the material evidence produced by the appellant and the judgment and award is contrary to the relevant provisions of the Act. The compensation at the rate of Rs. 3,000/- per acre is too meager. The location of the acquired land is 7 to 8 Kms away from Jintur and it is connected by a tar road to the taluka place. It was submitted that the land was fertile and a black soil where the crops like cotton, kharip and rabbi were yielded. He also submitted that the sale instance Exh.17 dated 25.4.1980, where the the total consideration of three acres land was Rs.17,000/- i.e. Rs. 5,600/- per acre approximately. He submitted that the sale instance at Exh.17 dated 25.4.1980, which was produced by the appellant was not properly considered by the Reference Court. He pointed out that the 3 F.A.No.1740 of 2007 other sale instances, which are marked as Exh.18 and Exh.19, where the transaction was for Rs.24,000/- per acre, were not considered by the Reference Court. He further argued that Reference Court should have considered the decision given by the other Reference Court in L.A.R.No.79 of 1984, where the amount of the compensation was enhanced upto Rs.6,000/- per acre and the land under the said L.A.R. was acquired from the same village for the same project. Reference Court in the said reference fixed the rate of compensation at Rs.6,000/- per acre. Learned Counsel further pointed out that the land from Survey Nos.166/1 and 167/1 from Bhosi village was acquired by the authority and L.A.R.No.167/1988 was preferred before the Reference Court. The amount of the compensation in the said reference was enhanced at Rs.24,000/- per acre. Learned Counsel submitted that the appellant is entitled to the same compensation at the same rate of Rs. 24,000/- per acre. In support of his submissions, he relied on the judgment of Supreme Court in Union of India Vs. Harinder Pal Singh and others, reported in 2005 AIR SCW 5900. In the said case, the compensation of the land was earlier fixed on the belting system and the Court held that irrespective of fertility, potentiality, nearness from the road etc., if the lands are acquired for the same project, then the parties are to be given the uniform rate. He further submitted that there were seven Neem trees, 25 Anjan trees in the land in dispute and no compensation was awarded for these trees by the Reference Court. 4 F.A.No.1740 of 2007 3. Learned Assistant Government Pleader, per contra, argued that the claim made by the appellant is exorbitant and arbitrary. He pointed out that the sale instances at Exh.17, 18 and 19 are post dated and, therefore, the consideration amount which was drawn by those lands are not comparable. He submitted that Reference Court while deciding the issue of enhancement has partly allowed the claim of the appellant by increasing the rate from Rs.1,200/- per acre to Rs.3,000/- per acre and the said increase is adequate in view of the market value, location, and the nature of the land situated in the village Bhosi, Taluka Jintur, District Parbhani. He further submitted that the amount of the award admittedly increased in L.A.R.No.167 of 1988 and it was granted as Rs.24,000/- per acre. However, the facts in the said case are distinguishable on the ground that notification issued under Section 4 of the Act in respect of the said land was dated 27.6.1985 i.e. four years later to the notification issued in 1980, in respect of the land of the present appellant. 4. Following point arises for determination : (i) Whether compensation can be enhanced ? Ans : Yes. (ii) Whether appellant is entitled to the compensation at the rate of Rs.24,000/- or Rs.7,000/- per acre ? Ans : No. 5 F.A.No.1740 of 2007 It is to be noted that in the Reference or in the appeal, the appellant has contended that the amount of compensation is to be enhanced at the rate of Rs.7,000/- per acre. Appellant has offered him as a witness and in his evidence, he has confined his claim for Rs. 7,000/- per acre. His claim for amount of Rs.24,000/- per acre is based on the decision in L.A.R.No.167 of 1988. Learned Counsel has produced the plan of the land, which is acquired for the project of the percolation tank in village Bhosi. The land under acquisition in L.A.R.No.167 of 1988 is Survey Nos.166/1 and 167/1. From the map, it is seen that the land is across the river but it is from the same village. However, as pointed out by the learned Assistant Government Pleader, the notification for acquisition under Section 4 of the Act in respect of the said land was issued on 27.6.1985, i.e. 4 and ½ years after the impugned notification dated 25.4.1980. In the present matter the award was passed in July 1981 and thus, as there is a gap of more than four years in issuing the notification, the land cannot be valued at the uniform rate after four years. The lands acquired in the case of Union of India Vs. Harinder Pal Singh and ors. (supra), were acquired by notifications dated 1.6.1977, 22.7.1977, 28.3.1978 and 5.5.1978. The notifications referred though several, appears to be issued within a period of one year. After the gap of four years, the value of the land undoubtedly increases. On this ground, as the notification was issued four years later, the case of Harinder Pal Singh is distinguishable. Considering the time factor in the notification, the enhanced rate given in L.A.R.No.167 of 1988 cannot be considered. 6 F.A.No.1740 of 2007 5. The land and the amount awarded to the land i.e. Survey No. 161/4 from village Bhosi in L.A.R.No.79 of 1984, however, is found comparable. Moreover, the decision in connected First Appeal No.185 of 1997, which is against the order passed in L.A.R.No.267 of 1991, the Reference Court while considering the claim of enhancement of the appellant, fixed the rate of land at Rs.5,000/- per acre. The increase in the rate is based on the sale instance, which is marked as Exh.21 in the said L.A.R.No.267/1991. 6. The appellant has not proved his net annual income per acre out of the said land. In the absence of any evidence, the Reference Court has rightly did not give any compensation to that effect. 7. Appellant could not justify his demand of enhancing the claim at the rate of Rs.7,000/- per acre. In the present appeal, the appellant has tendered the same sale deed dated 25.4.1980. Considering the sale instance at Exh.17 dated 25.4.1980, where three acres of land was sold for a consideration of Rs.17,000/-, i.e. Rs.5,600/- per acre approximately, I am inclined to fix the amount of the compensation at the rate of Rs.6,000/- per acre, on the ground of parity. In L.A.R.No.79 of 1984, compensation was fixed at the rate of Rs.6,000/- per acre, as the notification is of the same date and the land in L.A.R.No.79 of 1984 is just across the river and from the same village and acquired for the same project. 7 F.A.No.1740 of 2007 8. Thus, the judgment and order passed by the Reference Court is hereby set aside and the rate of the compensation is increased from Rs.3,000/- per acre to Rs.6,000/- per acre and the order of the consequential benefits is maintained. Appeal is partly allowed accordingly. ( MRS MRIDULA BHATKAR, J.) (vvr/1740.07fa)