1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 240 OF 2000 with Civil Application No. 1176 of 2003 with Cross Objection (Stamp) No. 9177 of 2001 The State of Maharashtra ) (At the instance of Special Land Acquisition ) Officer No.8, Pune). ).. Appellant versus 1. Smt. Bhimabai Bhika Gondal, died hence ) deleted. Her L.R. Nos. 4 and 5 ) 2. Raoji Chimaji Gunjal, Age adult, ) Occ. Agriculture. ) 3. Kaluram Krishnaji Gunjal , age adult, ) Occ. Agriculture. ) 4. Smt. Bhagubai Khandu Talekar, age adult, ) Occ. Agriculture. ) 5. Smt. Tulsabai Kondaji Tanpure, adult, ) Occ. Agriculture ) All r/o Village Bibi, Tal. Khed. ) Dist. Pune. )..Respondents WITH 2 FIRST APPEAL NOS. 842 TO 864 OF 2005 with Civil Application Nos. 2195 to 2217 of 2005 & 4484, 4485 and 4488 of 2007 Mr. K.K. Tated, AGP, for the Appellants in FA Nos.240 of 2000 & 842 to 849 of 2005. Mr. B.H. Mehta, AGP, for Appellants in FA Nos. 850 to 854 of 2005. Mr. Y.M. Nakhwa, AGP, for Appellants in FA Nos. 855 to 859 of 2005. Mrs.G.P. Mulekar, AGP, for Appellants in FA Nos. 860 to 864 of 2005. Mrs. Pallavi H. Potnis for the Respondents-claimants. CORAM: SWATANTER KUMAR, C.J. & DR. D.Y. CHANDRACHUD, J. Judgment reserved on : September 05,2007 Judgment delivered on: September 20,2007 JUDGMENT (Per Swatanter Kumar, C.J.): 1. First Appeal No. 841 of 2005 has been preferred by the State against the judgment and award dated 30th September, 2000 passed by the Reference Court in LAR No. 88 of 1990 titled as Babu Rama Gandal vs. The Special Land Acquisition Officer No.8. The State has filed Appeals in each of the references as the Reference Court had disposed of 24 References vide the impugned judgment. It needs to be noticed at the very outset that in the impugned 3 judgment, the Reference court did not discuss and, in fact, the parties had also not led much evidence except mainly relying and tendering the judgment of another reference court, exhibit-33. The judgment passed by the Reference Court related to acquisition of lands under the same notification from the same village. The judgment relied upon was passed by the Reference Court in LAR No. 89 of 1990 decided on 7th February, 1998. In that case, number of sale instances were tendered in evidence and parties had also led oral evidence. LAR No. 89/90 was also challenged by the State in First Appeal No. 240 of 2000. We had, therefore, directed First Appeal No. 240 of 2000 which was listed before the single Judge of the High Court, to be listed before the Division Bench along with these 24 cases which were to be heard by the Division Bench. As all these cases arise from two common judgments based on same evidence as produced by the claimants and the State in LR No. 89/90, it will be appropriate to dispose of all these 25 Appeals by a common judgment. 4 2. The necessary facts are that the State of Maharashtra issued a notification under Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as “the Act”) on 19th November, 1981, proposing to acquire land at village Bibi, Tal. Khed, Dist. Pune. In furtherance to this notification, declaration under Section 6 of the Act was issued on 13th May, 1982. The Government took possession of the land and after granting opportunity to the claimants, the Special Land Acquisition Officer (“SLAO”) made his award on 15th September, 1986. In the Award, various sales instances were considered by the SLAO from village Bibi and adjoining villages viz. Vetale, Kadadhe, etc. The sale instances which were examined by the SLAO were from the years 1975 to1981 and he grouped the lands into 5 classes and awarded compensation at the rate of Rs. 6,000/- to Rs. 12,000/- per hectare, depending upon the nature of the land. On the basis of the land revenue assessment and while even considering the valuation, the market value payable on the principle of valuation by income capitalization method, he determined the compensation payable for the entire acquired area of 285 hectares, 46.6 ares at Rs. 75,22,608/-. 5 3. The claimants, being dissatisfied with the compensation awarded for acquisition of their respective lands, preferred references under Section 18 of the Act, which were referred by the SLAO in accordance with law and were finally adjudicated by the Reference Court. Before that court, in LAR No. 89/90, the claimants claimed that their lands were bagayat lands and the market value of the land was Rs. 40,000/- per hectare. They produced sale instances at Exhibits-24, 26, 28, 32 and 34, 7/12 extracts at exhibits-41 to 45 and also examined six witnesses including the claimant and the parties to the sale deeds. On the basis of this oral and documentary evidence, the Claimants had claimed a sum of Rs. 40,000/- per hectare. However, by way of an amendment before the Reference Court, they amended the claim petition to claim Rs. 80,000/- per hectare. In LR No. 88/90 and the other connected references, the claimants tendered the judgment in LR No. 89/90 as Exhibit-33 and led oral evidence. Exhibit-26 was the oral evidence of the claimants and no other documentary or oral evidence was led by the parties. 4. The Reference Court first decided Reference No. 89/90 6 vide its judgment dated 7th February, 1998, and awarded compensation to the claimants on the basis of the classification of lands in the following manner. The Reference Court declined to take into consideration the sale deeds, Exhibits-28 and 34. However, while relying upon the average amounts at Exhibits-24, 26 and 32, it awarded the following compensation and even gave an increase at the rate of 10 per cent for the rising trend and inflation. (i) Jirayat land Rs. 48,000/- (ii) Semi-bagayat land Rs. 72,000/- (iii)Bagayat land Rs. 96,000/- Despite the above determination, the Reference Court restricted the claim of the claimants to Rs. 40,000/- per hectare. In view of the law laid down by the Supreme Court in the case of Ujjain Vikas Pradhikaran (Ujjain Development Authority) vs. Tarachand and another, (1996) 5 SCC 574, the Reference Court held that the awards were made prior to the amendment of Section 25 of the Act and the claimants would not have the right to ask for enhanced amount of compensation. 5. Following the judgment at Exhibit-33, similar compensation was awarded to the claimants. Upon appreciation of evidence, the 7 finding has been recorded by the Reference Court in L.R. No. 89/90 Exhibit-33. It will be useful to refer to the said finding which reads as under: “ 20. This takes me to consider the effect of the sale instance produced by the claimants. The chart thereof is thus:- Sr. Exh. Res. Village Classification Consideration No. No. No. (1) (2) (3) (4) (5) (6) 1. 24 126 Vetale Jirayat 5000 2. 26 523 Vetale Jirayat 4000 3. 28 309 Velad Paddy 9000 4. 32 675 Vetale Jirayat 5000 5. 34 1342 Chas Jirayat 5000 Gat Area Rate Date Distance No. P.H. (7) (8) (9) (10) (11) 197 0.13 38461 1.2.80 Boundaries Meeting 129 0.08 50000 18.4.80 Boundaries Meeting 266 0.11 81818 16.3.78 2 ½ Kms. away 401 0.12 41666 5.5.78 Boundaries Meeting 2539 0.09 55555 7.12.81 2 ½ Kms. away 21. It will be seen that, the sale deeds at Exs. 28 and 34 are of the villages Walad and Chas and lands properties about 2.5 kms. away. The village Vetale seems to be the village with the boundaries meeting with the village of the acquired lands. In my opinion, 8 therefore, the sale instances in Exh. 24 & 26 & 26 & 32 can be considered as comparable sales. They are dated 1.2.80, 18.4.80 and 5.5.78. 1. Exh. 24 Res. No. Vetale Jirayat Laxman R. Bomble 126 Rs.5000/- v. Vithal S.Bombale 2. Exh.20 Res.No. Vetale Jirayat Shripati T.Bomble 523 Rs.4000/- v. Dhondu S. Bomble 3. Ex.32 Res.No Jirayat Dagdu R. Bomble Rs.5000/- v. Kisan M. Kondhare The relevant date in the present case is 19.11.81. The rate per Hectare of these lands are Rs. 38,461/-, Rs. 50,000/- and Rs. 41,666/- total Rs. 1,30,127. 3 = 43,375.66 ps. by giving rise of 10% for about one year due to trend of rising price and inflation, the market price of the lands under these sales would come to round about Rs.48,000/- per hectare, for calculating the market value for the year 1981. 22) According to these witnesses, and the sale deeds, these properties are of Jirayat varieties. Therefore, the rate of semi bagayat, lands and bagayat lands would be and need to be taken as 1 ½ and 2 times thereof i.e. Rs. 72,000/- and Rs. 96,000/- per hectare. In the present case, as I have found that, the claimants have not established that, their lands were perennial bagayat lands by adducing proper evidence, I would consider them to be semi-bagayat lands in the circumstances and, therefore, the market value of the acquired lands 9 as per thee sale deeds would come to Rs. 72,000/- P.H., as on the relevant dates. 23. This now takes me to the consideration, as to at what rate the claimants would be entitled for the compensation, because, in the present case, initially the claimants had claimed compensation at the rate of Rs. 40,000/- P.H. and later on in the year 1995, by making an amendment application, the rate of claimed to Rs. 80,000/- P.H.” ..... .... ..... “30. .... ..... When in proceedings in the appeal are the proceedings in the continuation of the suit i.e. Claim, and such increase was not allowed by the Hon. Supreme Court, there is no sufficient reason as to why it should be allowed during pendency of the suit i.e. Reference proceedings before the trial Court. More so, when there is no justification adduced by the claimants in this behalf, and much more so in view of the statement of the claims made by the land owners in response to the notices by the Spl. L.A.O. There is no specific contention of the claimant that he had claimed compensation before the L.A.O. at the rate of Rs. 80,000/- P.H., or even @ Rs. 40,000/- P.H. as State did not lead evidence to show that claimant had claimed compensation before L.A.O. treating market value of their lands below Rs. 40,000/- per hectare. In my opinion, in such circumstances, the claim of the claimants at the rate of Rs. 40,000/- P.H. can certainly be allowed for Bagayat land or even semi-bagayat lands, in view of the above findings as regards the market values of the land for these types of lands. Therefore, I find that, the claimants are entitled to the compensation of their acquired lands at the rate of Rs. 40,000/- P.H. i.e. 5.59 x 40,000/- the market value already paid.” 10 6. The above reasoning of the Reference Court shows that the Court had primarily relied upon Exhibits-24, 26 and 32. These are the sale instances relating to Gat Nos. 197, 129 and 401 in village Vetale. The boundary of revenue estate of village Vetale is common with the village Bibi from where the present references had arisen. All the sale instances relate to Jirayat land and after computing the value of adjacent boundaries, common features and kind of the land, the Court fixed compensation for the jirayat land in village Bibi at the rate of Rs. 48,000/- per hectare and then enhanced the compensation payable to semi bagayat and bagayat lands. The statement of the claimants were recorded. Witness Nos. 1 to 5 are the witnesses of the sale instances in the capacity of either as purchaser or as seller. It was on their statement that these documents were exhibited as aforenoticed. Kondiba, Witness No.6, is one of the claimants and in his statement he clearly stated that the land revenue was not changed for a period of 25 years, despite the fact that the lands had improved over a long period. According to him, pumps (lifts) had been fixed for lifting the water from the river 11 through pipeline to the lands in question and the water was also being used as drinking water. Water was supplied to the land by pipeline and they always had sufficient water for drinking and for their agricultural activity. He also stated that village Vetale was adjacent to village Bibi and the lands in that village were jirayat lands while the acquired lands were mainly bagayat. This witness was cross- examined and he maintained the statement made by him in examination-in-chief and further denied the suggestion that Rs. 7,000/- per hectare was proper and adequate compensation payable for acquisition of their lands. We may also notice that land details as reflected in Exhibits-41 to 45 (7/12 extracts) show that the lands were irrigated lands. Though in some of them the column of irrigation is blank, it also notices that loans were taken for providing lift irrigation. 7. The State made no effort to bring any evidence on record to show that the claims raised by the claimants were unreasonably high, unfair or that the nature of the lands as indicated was not bagayat lands. 12 8. The main argument raised before us on behalf of the State was that the sale instances of village Vetale were not comparable instances and same compensation could not be awarded to the claimants. This argument, on the face of it, is of no help to the State. It is a settled proposition of law that the sale instances of the adjacent villages can be taken into consideration while determining the compensation payable to the claimants for acquisition of their lands and particularly when none of the parties had led evidence in regard to sale instances relating to the same village from where the lands were acquired. In this regard, reference can be made to a judgment of the Division Bench of this Court in the case of The State of Maharashtra and others vs. Yashwant Kahnu Shirsath (First Appeal No. 896 of 2005 and others) decided on 19th July, 2007. The relevant observations are as under: 7. It is a settled principle of law that the land of the adjacent villages can be made the basis for determining the fair market value of an acquired land. This principle of law is qualified by a clear dictum of the Supreme Court itself that wherever direct evidence i.e. the instances from the same village are available then it is most desirable that the Court should consider those instances rather than relying upon sale instances of the adjoining land. The exclusion of these exhibits from the zone of consideration for determination of the 13 controversy thus cannot be said to be incorrect in law. The land in Exhibit-30 relates to village Mukane,while Exhibits-14 and 15 relate to the other two villages viz. Modade and Rayambe. These villages are located around the acquired land but have a better potential as they are closer to industrial area and the Highway. The evidence tendered in relation to the land of the adjacent villages would be a relevant piece of evidence for determining the market value of the land and even the awards relating to those adjoining villages would also be a relevant consideration. Reference in this regard can be made to the case of Sham Krishan Chandiwala vs. Union of India, 1978 (14) DLT 83 and judgment of the Supreme Court in the case of Harcharan vs. State of Haryana, AIR 1983SC 43, where the Court stated that subject to the test of comparison of land areawise, topographywise and usewise, awards and transactions in relation to the adjacent areas are the best evidence with regard to valuation of price of land. Still, in the case of Gokal vs. State of Haryana, AIR 1992 SC 150, the Court was concerned with awarding of compensation to the land similarly situated but vide different notifications issued by the Government under Section 4 of the Act. Trend in increase of the land prices in those areas was also taken to be a relevant consideration”. 9. In addition to the above settled principle of law, we may further notice another aspect of this case and that is, the SLAO had himself taken large number of sale instances into consideration of village Vetale. In fact, the compensation was determined by him with reference to the sale of the land in village Vetale. This fact would 14 stare the State in face and they cannot be permitted even to raise this contention. Once the comparability, nature of the land, its potential and utility are similar, in that event, the mere fact that the sale instances relied upon by the Court relate to an adjacent village would hardly be of any consequence. The reasoning given by the Reference Court in LAR No. 89/90 is correct and does not call for any interference by this Court in First Appeal. The oral and documentary evidence clearly demonstrates that the sale instances taken into consideration by the trial Court fell within the ambit of admissible and relevant evidence. 10. The learned Assistant Government Pleader then contended that the Reference Court has fallen in error of law in not applying deduction of a reasonable extent from the market value arrived at on the basis of the sale instances. The sale instances were of smaller pieces of land and the largest out of them was 13 Ares while the present acquisition is of more than 285 hectares. In this regard, he placed reliance on the decision of this Court dated 7th September, 15 2007, in the case of The State of Maharashtra vs. Pandurang J. Patil and others (First Appeal No. 382 of 1995 and others). 11. In order to rebut the contention of the State, on behalf of the claimants it is contended that the claimants, in fact, were entitled to compensation at the rate of Rs. 53,256/- per hectare for jirayat land and consequently higher rates for bagayat land. It is contended that there would be an increase in the price at the rate of 12 per cent per annum for the intervening period of the date of the sale deed and the date of notification. The sale instances relate to 1st February, 1980 and May, 1978, while the notification under Section 4 of the Act was issued on 19th November, 1981. Besides the annual increase in the sale price, no deduction can also be directed to be made from the determined price as the land has to be exempted from the point of view of an individual claimant and not collective acquisition. It is also our view that deduction is not an absolute proposition of law. Reliance in this behalf is placed upon the judgments of the Supreme Court in the case of (i) Bhagwathula Samanna and others vs. Special Tahsildar and Land Acquisition Officer, 16 AIR 1992 SC 2298, (ii) Rameshwar Solanki vs. Union of India, AIR 1995 Delhi 358, and (iii) Krishi Utpadan Mandi Samiti vs. Bipin Kumar and another, (2004) 2 SCC 283. 12. We have already discussed that the compensation determined by the Reference Court in LAR No. 89/90 is just, fair and in accordance with law. There is definite evidence on record as noticed by the Reference Court that if the lands are not purely bagayat lands, at least they are semi bagayat lands and thus their value has to be higher than the value falling in the jirayat zone. There is no dispute to the fact of identical location and potential of these lands, as they are purely agricultural lands. Thus, even the conclusion of the Reference Court that semi bagayat land should be paid compensation at a higher amount i.e. nearly Rs. 72,000/- per hectare cannot be interfered with. 13. If the contention of the State is to be accepted that there has to be some element of deduction applied for the reason of smallness of plots involved in the sale instances and that the acquisition is of a high track of land, even in that case the deduction 17 has to be of a minimum grade as there is no development project and the area was being acquired for an irrigation project. In such cases, it would be more than reasonable to apply a deduction of at least 15 per cent on the total value of the land which, in any case, would be liable to be set off against the price rise which the claimants would be entitled to for the intervening period of the sale instances and the date of notification. The grant of 10 per cent by the Reference Court would clearly be on the lower side and this could safely be so held in view of the judgments of the Supreme Court in the cases of Krishi Utpadan Mandi Samiti (supra) and Rameshwar Solanki (supra). Applying certain amount of guess work, the computation arrived at by the Reference Court, in fact, would remain by and large unaltered even as a result of acceptance of the various contentions raised before us. 14. Having discussed the compensation payable to the Claimants, now we may also notice that in First Appeal No. 240 of 2000, Civil Application No. 1176 of 2003 was filed for condonation of delay in filing the cross objections in the said Appeal. The applicants have stated the reasons that they were deprived of their livelihood 18 and as they did not receive the additional compensation, they could not file the cross objections in time. This by itself may not have been a sufficient reason for condoning the delay in filing the cross- objections. But, since the State Appeals were heard on merits, in all fairness, the cross objections filed by the respondents could be heard along with the Appeals itself. Thus, we allow this application and condone the delay in filing the cross-objections. 15. In the cross-objection, the cross-objectors, the respondents in the main appeal, have claimed compensation at the rate of Rs. 96,000/- per hectare on the ground that their lands were bagayat lands and the market value should not have been restricted as has been done in the impugned judgment. 16. We have already discussed in detail that the determined compensation does not require any interference by this Court in the present appeals. The cross objection for enhancement, on the ground which we would shortly proceed to discuss, deserves to be dismissed. 19 17. Having examined various issues in regard to the determination of market value of the acquired land, now we will proceed to discuss the merits of the contentions raised on behalf of the State that the claimants are not entitled to compensation in excess of what they had claimed before the SLAO. It is contended on behalf of the respondents that the notification under section 4 of the Act for acquisition of the land in question was issued on 19th November 1981 while the provisions of section 25 of the Act were amended by Act 68 of 1984 and the amendment came into force with effect from 24th September 1984. The law prevalent at the time of issuance of the notification would govern the rights and obligations of the parties and the claimants would be bound by the value stated by them before the SLAO at the very first instance. In this connection reliance has been placed on the judgments of the Supreme Court in the cases of Ujjain Vikas Pradhikaran (Ujjain Development Authority) v. Tarachand and Anr., (1996) 5 SCC 574, The Land Acquisition Officer cum DSWO A.P. v. M/s B.V. Reddy and Sons, AIR 2002 SC 1045 and the Division Bench decision of this court in State of Maharashtra v. Govind Goma Vovari and Ors., 2006(2) Mah L J 55. 20 18. The claimants have strenuously argued that the pre- amendment position of section 25 of the Act would not be