fa310.94 -1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 310 OF 1994 Balaji Narayan Kadalwar (Since died through L.Rs.) 1-A) Smt. Bhumabai w/o Balaji Kadalwar Age adult, Occ. Household, 1-B) Vinayak s/o Balajirao Kadalwar, Age adult, Both R/o. Kurunda, Tq. Basmat, District Parbhani ...Appellants Versus 1 The State of Maharashtra Through the Collector, Parbhani 2 The Special Land Acquisition Officer Upper Pen Ganga Project Parbhani ...Respondents ..... Mr. M.D. Narwadkar, advocate for the appellants Mr. P.P. More, AGP for respondents ..... CORAM: MRS. MRIDULA BHATKAR, J. DATED: 23RD AUGUST, 2011 JUDGMENT :- 1 This first appeal is preferred against the judgment and award dated 30.7.1993 passed by the learned C.J.S.D. Parbhani in L.A.R. No. 27 of 1991. The land in question is survey No. 18 Gat No. 48 situated at village Donwada, Tq. Basmat, District Parbhani. The fa310.94 -2- Government has acquired 2 H and 53 R land out of survey No. 18 for the purpose of construction of percolation tank at Donwada. Notification under section 4 was issued on 2.5.2985 and the award came to be passed on 13.7.1987. The S.L.A.O. granted compensation @ ` 5000/- per acre. The appellant accepted the said compensation under protest and the Reference was made under section 18 of the Land Acquisition Act to the Reference court i.e. learned C.J.S.D. Parbhani. The learned Reference court after considering the evidence placed on record has enhanced the amount of compensation from ` 5000/- to ` 7000/- per acre. Being aggrieved by the said award, this appeal is filed by the claimants. 2 In the appeal, the appellants have contended that the Reference court has erred in awarding the compensation ` 7000/- per ace whereas the appellants had submitted three sale deeds disclosing higher rate for comparison. The learned counsel for the appellants has submitted that the appellants claimed compensation @ ` 15,000/- per acre as against the inadequate compensation awarded by the Reference Court. It is further submitted that the land is acquired for the purpose of construction of percolation tank. The land is fertile, irrigated land and the Reference court ought to have considered the documentary evidence produced by the appellants while determining the compensation. It is further submitted that the appellant used to fa310.94 -3- take cash crops like cotton etc. and was getting net profit of ` 12,000/- per acre per annum. He was also getting ` 2000/- income per acre per annum by taking other crops and thus he was earning ` 14,000/- per acre per annum from the said land. He submitted that the sale deeds which were produced and relied upon by the appellants disclosed that the lands in the respective sale deeds were sold for ` 10,000/- per acre. 3 Per contra, learned AGP while opposing appeal has submitted that out of three sale instances produced on record, two are of the subsequent date of notification and therefore, they cannot be considered in evidence. The third sale instance produced as the only sale instance and the same does not determine the market price of the land at the relevant time. He further submitted that the Land Acquisition Officer has passed award on the basis of the grouping of the lands as per the assessment. There is no proper evidence before the Reference Court to show the rate of the land can be fixed @ ` 10,000/- per acre. The point for determination is as follows:- i) Whether the appellant is entitled to get compensation @ ` 10,000/- per acre? 4 In the appeal the enhancement is claimed on the basis of two points i.e. i) the price given in the sale transaction in three sale deeds fa310.94 -4- and secondly the annual income fetched by the acquired lands. In the evidence of the appellant, he has admitted that he did not produce any account of expenditure or income of the agricultural lands. Thus, there is no evidence in respect of annual income fetched/received by the appellant from the said land. 5 Secondly, three sale deeds i.e. Exh. 29, 30 and 31 are relied upon by the appellants for the purpose of claiming enhancement in the compensation. Notification under Section 4 was issued on 2.5.1985. The sale instance at Exh. 30 and 31 are of 28.4.1986 and 24.4.1986 respectively. The lands in these sale deeds are from village Kurunda and the land acquired in the appeal is from the village Donwada. It was submitted that village Donwada and Kurunda are adjacent to each other. The Reference court has considered these two sale deeds. It is pointed out by the learned AGP that the price of the land was ` 10,000/- per acre was fixed as rights in the well was also sold. He pointed out that in one of the lands there is well and on the well an electric motor of 3 HP was installed and there were three lemon trees. Therefore, these two sale deeds at Exh.30 and 31 cannot be considered while determining the amount of compensation of acquired land. Exh.29 is the sale deed which is prior to the date of the notification and it was executed on 5.5.1982. The land in the said sale transaction was to the extent of 1 H 7 R for total consideration of ` fa310.94 -5- 32,000/- per Hectare which approximately comes to ` 10,000/- per acre. The said land is from same village. The amount of price given for the said land could have definitely taken into account for proper comparison if there would have been any evidence to show that the land in sale deed Exh.29 is adjacent to the land which is subject matter in this appeal i.e. survey No. 18 Gat No.48. The land in sale deed Exh.29 is survey No. 357/A which is subsequently marked as Gat No. 899. Thus, in absence of any evidence tendered by the appellant before the Reference Court on this point, it is difficult to fix the location of the land and distance between the acquired land and the land bearing survey No. 357/A (Gat No.899). Moreover, there is no evidence to show the similarity in respect of fertility or potentiality of the said lands. Considering these aspects, the appellant has failed to prove that the amount of compensation of the land is to be fixed at ` 10,000/- per acre much less ` 15,000/- per acre. The Reference Court has enhanced the amount from ` 5000/- to ` 7000/- per acre. In my view, the compensation awarded by the Reference court is appropriate and no further enhancement is warranted. Hence, the appeal is dismissed. *****