1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL No. 831 of 2010 The Executive Engineer, Beed Irrigation Division, Beed. Appellant (Ori. Defendant No. 2 Acquiring body) V E R S U S 1- Rangnath Shamrao Gutte, Age 61 years, Occu. Agril., R/o Nanaj, Tq. Ambajogai, Dist. Beed. 2- The State of Maharashtra, Through Collector, Beed. (formal party as any relief is not claimed against this respondent) Respondents Smt. Geeta Deshpande, Advocate for appellant. Shri. S.N. Kendre, A.G.P. for respondent No. 2. CORAM : A.V. NIRGUDE, J. DATE : 26th July, 2010. ORAL JUDGMENT : 1. This appeal filed against the Judgment and Award passed by the learned Adhoc District Judge-I, Ambajogai, District Beed in Land Acquisition Reference No. 849 of 1987, in which the respondent No. 1 was the claimant. The respondent No. 2 has acquired certain house properties situated at village Nanaj, Tq. Ambajogai, Dist. Beed, by issuing Notification under Section 4, on 14th February, 1979. In due course, the Special Land Acquisition Officer completed the land acquisition 2 proceeding by delivering an Award, awarding certain compensation to the respondent No. 1. In this case, the respondent No. 1 was compensated for acquisition of his house property. The respondent No. 1 filed the reference under Section 18 of the Land Acquisition Act, being aggrieved by the amount, which was awarded to him. His reference was opposed by the appellant and respondent No. 2. The main question between the parties at the level of the reference Court was, whether the respondent No. 1 was entitled to any additional compensation ? 2. In order to discharge such burden, the respondent No. 1 mainly adduced and relied upon the evidence of one property valuer, who supported his case, and deposed that the respondent No. 1 was entitled to almost double amount of compensation, that was awarded by the Special Land Acquisition Officer. The respondent No. 1 did not adduce the evidence in respect of sale proceeds. The learned Lower Court rejected the entire case of the respondent No. 1 seeking enhanced compensation and held that there is no possibility of increase in the compensation. The market value of the property in question was not proved. The learned Judge, however, awarded Rs. 1,000/- as compensation- a symbolic amount- per house to meet the expenditure incurred by the respondent No. 1 for shifting the residence. The learned judge placed reliance on clauses fourthly and fifthly of sub section (1) of Section 23 of the Act. Section 23 of the Act reads as under :- “ Section 23 :- (I) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into 3 consideration- First, the market-value of the land at the date of the publication of the [notification under Section 4, sub-section (i)]; secondly, the damage sustained by the persons interested, by reason of the taking of any standing crops of trees which may be on the land at the time of the Collector’s taking possession thereof. thirdly, the damage (if any) sustained by the persons interested, at the time of Collector’s taking possession of the land, by reason of servering such land from his other land; fourthly, the damage (if any) sustained by the persons interested, at the time of the Collector’s taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, in any other manner, or his earning; fifthly, if, in consequence of the acquisition of the land by the Collector the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under section 6 and the time of the Collector’s taking possession of the land. (1A) In addition to the market value of the land, as above provided, the Court shall in every case award an amount calculated at the rate of twelve per cent per annum on such market value for the period commencing on and from the date of the publication of the notification under section 4, sub-section (I) in respect of such land to the date of the award of the Collector or the date of taking possession of the land, whichever is earlier; Explanation :- In computing the period referred to in this sub-section any period or periods during which the proceedings for the acquisition of the land were held up on account 4 of any stay or injunction by the order of any Court shall be excluded. (2) In addition to the market value of the land as above provided the Court shall in every case award a sum of [thirty percent} on such market value, in consideration of the compulsory nature of the acquisition.” 3. Though thus the learned Judge utilized the provisions of clause fifthly for granting compensation of Rs. 1,000/- per house to the claimant, the respondent No. 1 had no occasion to demand such compensation. He did not specifically plead for such relief in his reference application., He demanded compensation based on the market value of the properties in question, at the relevant time, which is covered clause first of sub section (1) of Section 23 of the Land Acquisition Act. Every claimant, in addition to the enhanced compensation, based on the market value of his property, is entitled to claim additional compensation, if his case falls within any of the clauses namely secondly to fifthly. Such claim based on clauses secondly to sixthly would be different than the claim made on the basis of market value. In order to bring his case within the clause fifthly, a claimant is not only obligation to plead that in the consequence of the acquisition, he changed his residence and incurred certain amount for making such change, but in addition he has to prove such fact. Unless such steps are taken, the learned Judge of the reference Court cannot utilize clause fifthly. The finding recorded by the learned Judge of the reference Court that the respondent No. 1 was entitled to compensation based on clause fifth is thus illegal and it 5 deserves to be set aside. ORDER A] The appeal is allowed; B] Impugned Judgment and Award dated 20th August, 2007, passed by the learned Adhoc District Judge-I, Ambajogai, Dist. Beed, in Land Acquisition Reference No. 849 of 1987 stands set aside. There shall be no order as to costs. C] In view of the disposal of appeals Civil Application No. 1263/2009 is disposed of. [ A.V. NIRGUDE, J. ] SDM* 4107.08FA.ok