:1: pdp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 45 OF 1996 Shrimant Govindrao Narayanrao Ghorpade ..Appellant Vs. 1. The State of Maharashtra 2. The Special Land Acquisition Officer No.(XI) ..Respondents Mr. R.S. Patil i/by Mr. A.K. Abhyankar for appellant. Mr. A.R. Patil, AGP for respondent nos.1 and 2. CORAM: CORAM: CORAM: B.H. MARLAPALLE & D.G. KARNIK,JJ. B.H. MARLAPALLE & D.G. KARNIK,JJ. B.H. MARLAPALLE & D.G. KARNIK,JJ. Reserved Reserved Reserved on : March 05, 2009. on : March 05, 2009. on : March 05, 2009. Pronounced on : April 02, 2009 JUDGMENT JUDGMENT JUDGMENT (Per (Per (Per B.H. Marlapalle,J.): B.H. Marlapalle,J.): B.H. Marlapalle,J.): 1. This appeal filed under Section 54 of the Land Acquisition Act, 1894 (the Act for short) arises from the award dated 25/2/1994 passed by the learned 4th Additional District Judge at Kolhapur thereby allowing Land Reference No. 51 of 1988. The appeal has been filed by the land owner praying for further enhancement in the market rate of the land acquired from his ownership. The appellant has prayed for the :2: market rate at Rs.20/- per sq.feet i.e. about Rs.200/- per sq.mtr. 2. The notification under Section 4 of the Act was issued on 17/5/1985 for the acquisition of land admeasuring 78 R. from Revision Survey No. 641 of Ichalkaranji, District Kolhapur and the acquisition was for construction of Income Tax Office and staff quarters. The award was passed by the Land Acquisition Officer on 30/8/1985. Possession of the land was taken over on 17/9/1985. On receiving the notice under Section 12(2) of the Act, the claimant submitted an application under Section 18 of the Act and prayed for compensation at the rate of Rs.20/- per sq.ft. In short, the claimant claimed an additional amount of Rs.15,55,710/- as an additional compensation. The Reference Court fixed the market rate at Rs.32/- per sq.mtr. and deducted 1/3rd area of the land for development. Consequently, the Reference Court granted compensation for the remaining 2/3rd land i.e. 5200 sq.mtr. In addition, the Reference Court granted the statutory benefits like solatium, additional component and interest etc. :3: 3. The claimant in support of his case for higher compensation had examined before the Reference Court five witnesses i.e. Shri Baburao Balwant Chougule - PW 1, who was the Special Power of Attorney of the claimant, Shri Chandrakant Kulkarni - PW 2, Shri Shivaji Kumbhar - PW 3, Shri Shankarrao Pujari - PW 4 and Shri Divakar Kulkarni - PW 5, who was the private valuer. The State Government did not examine any witness. As per the appellant, the Reference Court highly undervalued the acquired land and it was not justified in discarding the sale instance of which Index was filed at Exh.35 and the land under sale instance was from Revision Survey No. 570. As per the Reference Court, there was nothing on record to hold that the sale instance in Revision Survey No. 570 was comparable and more so when the sale instance of 22/6/1989 i.e. post notification. The sale instance at Exh.37 was in respect of plot of land admeasuring 675 sq.ft. purchased by PW 3 - Shivaji. The land was from Survey No. 630/A/3 and the sale instance was dated 12/5/1986. The Reference Court discarded it on the ground that it was a very small plot of land. Sale instance at Exh.42 dated 21/12/1978 was proved through the evidence of Shri :4: Shankarrao Pujari - PW 4. The market rate of the sale instances was Rs.30/- per sq.ft. and the witness had admitted that the land under sale instance was 2 and 1/2 k.m. away from the land in Survey No. 641. The Reference Court, therefore, discarded the said sale instance. For similar reasons, the sale instances at Exhs. 48, 49 and 50 also came to be discarded by the Reference Court. . The Reference Court accepted the sale instances considered by the Land Acquisition Officer in respect of the land from Revision Survey No. 635/2 dated 26/10/1984, Revision Survey No. 636/B-1 dated 23/1/1984 and Revision Survey No. 636-A/6 dated 8/6/1981, Revision Survey No. 636/B Plot Nos.45 and 46 dated 5/3/1981. The market rate of these sale instances was at Rs.31.85 per sq.mtr. and it was rounded off at Rs.32/- per sq.mtr. 4. Undoubtedly, the land under acquisition was part of the development plan of Ichalkaranji as sanctioned by the Government of Maharashtra in 1981. PW 1 in his depositions before the Reference Court described the location of the land in the following :5: words:- "...It is situated near the Ichalkaranji Sangli Road. In the development plan, 80 feet road and 40 feet road are near the land under acquisition. At present, there is traffic on the said road. There are housing societies near the land under the acquisition, to the western side of the land under acquisition there is locality known as Sahakar Nagar. There are bungalows and houses in Sahakar Nagar which were built about 10 to 15 years back. To the east, there are residential houses and housing societies. To the north there are spinning mills and industries. To the south, the land purchased by Wadagaon Krishi Utpanna Bajar Samiti is situated....." . In the cross-examination of this witness, there was nothing brought out to disbelieve the surroundings of the land as stated by the witness in his examination-in-chief. Though we agree that the land purchased by the LIC from Survey No. 570 was not a comparable sale instance and the sale instances of :6: small plot of lands could not be taken into consideration, as has been rightly held by the Reference Court, in our opinion, the rate fixed at Rs.32/- per sq.mtr. is too low and the deduction of 33% is reasonable when the land was acquired for construction of office and residential quarters. 5. First Appeal No. 941 of 1997 came to be decided by us as per our common judgment pronounced today. The notification under Section 126(4) of M.R.T.P. Act, 1966 read with Section (6) of the Act was published on 27/2/1986 and the Land Acquisition Officer had passed award on 7/5/1987. The land admeasuring 8 H. 48 R. came to be acquired for the re-settlement of slum dwellers and the said land is not far away from the suit land. We fixed the market rate at Rs.185/- per sq.mtr. and granted deduction from the land for development at 25%. We have also noted that the land was acquired by the Municipal Council. But in the instant case the land was sought to be acquired for the Income Tax Department of the Government of India. Some expenditure on development of internal roads etc. is bound to be incurred and, therefore, we do not wish to disturb the deduction of :7: 33% of land for development i.e. open space, roads and the expenditure to be incurred for development etc. by keeping in mind that the land was agricultural land and it was about 2 Acres. It is well settled that some guess work is inevitable in determining the market rate of agricultural land, in the absence of comparable sale instances. We are also satisfied that the market rate granted by the reference Court is inadequate and does not reflect the prevailing market value of the land acquired. In our considered opinion, it would be just and proper to fix the market value for the suit land at Rs.150/- per sq.mtr. . With 1/3rd deductions for the development of the land, the market rate would come to Rs.100/- per sq.mtr. for the total area of 78 R. acquired in the instant case. 6. Hence, we allow the appeal partly and fix the market value at Rs.100/- per sq.mtr. for 78 R. land acquired for the Income Tax Department. In addition, the appellant is entitled for all other benefits under Section 23(1A) and 23(2) as well as Section 28 of the :8: Act. Parties to bear their respective costs. 7. Award in the above terms be issued by the Registry. (D.G. (D.G. (D.G. Karnik,J.) Karnik,J.) Karnik,J.) (B.H. (B.H. (B.H. Marlapalle,J.) Marlapalle,J.) Marlapalle,J.)