1 fa770,751,1048,211 ssp IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.770 OF 1991 The State of Maharashtra ...Appellant vs. Kantilal Manikchand Shah (since deceased through L.Rs.) 1-A Smt.Nalini Kantilal Shah 1-B Harshakumar Kantilal Shan 1-C Chandralekha Dhanukumar Gandhi 1-D Sou Seema Ashok Shaha 1-E Sou Chima Jawahar Shaha ...Respondents ALONG WITH FIRST APPEAL NO.751 OF 1992 Kantilal Manikchand Shah (since deceased by his L.Rs.) Nalini w/o Kantilal Shah (since deceased by her L.Rs.) 1 Harshkumar Kantilal Shah 2 Sou.Chandralekha Dhanyakumar Gandi 3 Sou.Seema Ashok Shah 4 Sau Chitra Jawahar Shah ...Appellants vs. The State of Maharashtra ...Respondent AND FIRST APPEAL NO.1048 OF 1991 The State of Maharashtra ...Appellant vs. Ramesh Bhogilal Doshi ...Respondent ALONG WITH FIRST APPEAL NO.211 OF 1992 Ramesh Bhogilal Doshi ...Appellant vs. The State of Maharashtra ...Respondent Mr.A.R.Patil, A.G.P for the appellant in F.A.NOS.770/1991 AND 1048/1991 and for respondent in F.A.Nos.751/1992 and 211/1992 Mr.Prafulla B. Shah for the respondent Nos.1A to 1E in F.A.NO.770/1991 and for respondent in F.A.no.1048/1992 2 fa770,751,1048,211 and for appellants in F.A.nos.751/1992 and 211/1992 CORAM : A.S.OKA,J. DATE : MARCH 16,2011 ORAL JUDGMENT: 1 These appeals can be disposed of by a common Judgment. First Appeal nos.770 of 1991 and 751 of 1992 arise out of the Award made in a Land Acquisition Reference no.4 of 1988 under section 18 of the Land Acquisition Act,1894 (hereinafter referred to as the said Act). The acquisition relates to land bearing Plot no.47 admeasuring 1366 sq.meters situated at village Saidapur, Taluka Khandala, District Satara. Notification under section 4 of the said Act was issued on 18 th January 1985. Award was made under section 11 of the said Act on 8 th January 1988. The Special Land Acquisition Officer by the impugned Award offered market value at the rate of Rs.26/- per sq. meter and granted compensation of Rs. 57,229/-. In the reference under section 18 of the said Act made at the instance of the claimant, market value was claimed at Rs.90/- per sq. meter. By the impugned Judgment and Award, the Reference Court granted enhancement in the market value by fixing the market value at the rate of Rs.85/- per sq. meter. First Appeal no.770 of 1991 is preferred by the State Government for challenging the said award. First Appeal no.751 of 1992 has been preferred by the claimant seeking enhancement in the market value. 2 First Appeal nos.1048 of 1991 and 211 of 1992 arise out of Land Acquisition Reference no.10 of 1988 under section 18 of the said Act. Acquisition is in respect of the plot no.6 admeasuring 607 sq. meters at village Saidapur. The date of notification under section 4 (1) of 3 fa770,751,1048,211 the said Act and the date of award under section 11 is the same as in case of companion appeals. In this case, market value offered by the Special Land Acquisition Officer was Rs.22.50 per sq. meter. Reference Court fixed the market value at the rate of Rs.85/- per sq. meter. The First appeal No.1048 of 1991 has been filed by the State Government for challenging the enhancement granted. The First Appeal no.2119 of 1992 is preferred by the claimant for seeking further enhancement in the market value. 3 The learned A.G.P appearing for the State of Maharashtra submitted that in these cases the claimants have not adduced any evidence for discharging the burden on them to prove that the market value offered by the Special Land Acquisition Officer was inadequate. He submitted that in absence of any evidence adduced by the claimants, the learned Reference Court has erroneously relied upon the rate mentioned in a draft award made under section 11 of the said Act. He submitted that the rate of market value in the draft award is not at all relevant. The learned counsel for the claimant submitted that what is stated in the award is the admission of the State Government and there is a clinching admission that the market rate of Rs.85/- per sq. meter is reasonable. Therefore, the State Government is estopped from contending that the market value of the acquired land is less than Rs.85/- per sq. meter. He, therefore, submitted that no interference is called for in the appeals preferred by the State Government and enhancement as prayed be granted in the appeal preferred by the claimant. 4 I have given careful consideration to the submissions. Award under section 11 of the said Act is in 4 fa770,751,1048,211 the nature of an offer. The claimant who does not accept the award can seek a reference under section 18 of the said Act. After reference under section 18 of the said Act is made, the claimant is in a position of the plaintiff who has to discharge the initial burden of proving that the market value offered by the Special Land Acquisition Officer is inadequate. After the said burden is discharged, for establishing the correct market value on the relevant date, the claimant is duty bound to adduce evidence. The well accepted method which is normally adopted in such matters is comparison method by producing and proving the comparable sale instances or Awards made under sections 11 or 18 of the said Act in respect of comparable lands. In the present case, it is an admitted position that the claimants have not relied upon any comparable sale instances or any awards in land acquisition cases. The claimants have stepped into witness box and have deposed regarding the area of the acquired land and the claim made by them. The perusal of the Roznama of the proceedings shows that no document of sale instance has been exhibited. Thus, in short, the claimants have not adduced any evidence in the form of comparable sale instances. There is no evidence adduced to show that the market value offered under the Award made by the Special Land Acquisition Officer is inadequate. 5 The impugned awards under section 18 of the said Act are based only on the draft award prepared by the Special Land Acquisition Officer. In the draft award prepared by the Special Land Acquisition Officer, there is an observation made that the market value of Rs.85/- per sq. meter is quite fair and reasonable. There is a similar statement found in the award published under section 11 of the said Act. However, the said observation is to the 5 fa770,751,1048,211 effect that he had made valuation at the rate of Rs.85/- per sq. meter. Under the proviso to sub section 1 of section 11, the Collector/Special Land Acquisition Officer cannot make an award without prior approval of the officer appointed by appropriate Government. In the present case, the officer appointed is Revenue Commissioner who did not approve the award at the rate of Rs.85/- per sq. meter and approved a lesser market value. Award was accordingly made by which lesser market value was offered. Hence, it must be stated here that reliance cannot be placed on a draft award as the draft award cannot be said to be an award under section 11 of the said Act. The rate of Rs.85/- per sq. meter was a mere suggestion in the draft award. While approving the draft award, the said suggestion of the Special Land Acquisition Officer was not accepted and therefore, the claimant cannot place reliance on what is stated in the draft award. The suggestion of the Special Land Acquisition Officer that market value was Rs.85/- per sq.meter cannot be said to be an admission in the award under section 11 of the said Act. 6 Perusal of the impugned Judgments shows that without there being any evidence of comparable sale instances, the learned trial Judge has come to the conclusion that the market value of the acquired land was Rs.85/- per sq. meter. There is some reference in the impugned Judgments to the sale instances which are considered by the Special Land Acquisition Officer. The said sale instances were not produced and proved before the Reference Court and therefore, same could not have been considered. Thus, the only conclusion can be that the claimants have miserably failed to discharge the burden on them and therefore, the appeals preferred by the State Government must succeed. The appeals preferred 6 fa770,751,1048,211 by the claimants must fail. 7 Hence, I pass the following order : i) Impugned Judgments and Awards are quashed and set aside and the Land Acquisition Reference nos.10 of 1988 and 4 of 1988 stand dismissed. First Appeal Nos.770 and 1048 of 1991 are accordingly allowed. There will be no order as to costs. ii)First Appeal no.211 of 1992 and 751 of 1992 stand dismissed with no order as to costs. JUDGE