abs IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 466 OF 1996 The State of Maharashtra .. Appellant V/s Vishram Kundalik Raorane .. Respondent Mr.A.R. Patil, A.G.P. for the appellant. Mr.Ryan D’Souza i/b Mr.Imtiyaz I. Patel for the respondent. CORAM : D.G. KARNIK, J. DATE : 30TH SEPTEMBER 2008 ORAL JUDGMENT ORAL JUDGMENT ORAL JUDGMENT: 1. Heard learned counsel for the parties. 2. This appeal is directed against the judgment and order dated 2nd November 1995 passed by the Joint Civil Judge, Senior Division, Ratnagiri, sitting at Sawantwadi, allowing the reference under section 18 of the Land Acquisition Act, 1894 (for short "the Act"). 3. The respondent was the owner of the land bearing survey no.40 hissa nos.7 and 8 admeasuring 77 ares and 72 ares respectively situated at village Vabhave, Taluka - 2 - Vaibhavwadi, District Ratnagiri (for short "the acquired land"). A notification under section 4 of the Act was published on 1st March 1988 proposing to acquire the said lands for the purpose of construction of a Tahsil office. The declaration under section 6 of the Act was made on 17th April 1989 and the award was published on 27th April 1989, awarding compensation of Rs.17,520/- to the respondent. On an application of the respondent, the Collector made a reference to the court under section 18 of the Act which was transferred to the Court of Civil Judge, Senior Division for hearing and disposal in accordance with law. Before the reference court, the respondent examined himself on oath as P.W.1. He however did not examine any other witness. The respondent produced before the reference court three Index II extracts at Exhibits 42, 43 and 44 in respect of three sale transactions. After considering the oral and documentary evidence adduced by the respondent, the learned Civil Judge held that the market value of the said land had not been properly determined by the Land Acquisition Officer. It that the market value of the acquired land was Rs.2,000/- per are. Accordingly, he ordered payment of compensation for the said land at the rate of Rs,2,000/- per are with interest at 12% per annum from 14th April 1988 to 19th April 1991 together with solatium at 30% of the market value of the acquired land. Aggrieved by the decision, the State has filed - 3 - the present appeal. 4. After hearing the learned counsel for the parties, the points that arise for my determination and my answers thereto are as follows: (A) Whether the appellant proved that the market value determined by the Land Acquisition Officer was inadequate? ... No (B) Whether the respondent proved that the market value of the acquired land was Rs.2,000/- per are on the date of the notification under section 4 of the Act? ... No (C) Whether the judgment of the Lower Court needs interference? ... Yes 5. The respondent only examined himself and did not examine any witness much less any expert to prove valuation. The examination in chief was laconic and was over in one paragraph in one page. In the examination in chief, the respondent stated that the market value of the acquired land was about Rs.5,000/- per are and he was claiming compensation of Rs.3,000/- per are. The - 4 - acquired land had non-agricultural potential. There were police station, taluka office, government hospital and high school in the village. The acquired land was 150 mts. away from the market and was situated near the State Highway Deogad-Nipani. Zilla Parishad road was 100 mts. away and railway station was 1 km. away from the acquired land. He further stated that he had produced Index II extracts in respect of the three transactions at Exhibits 42 to 44. And that was the end of the examination in chief. The respondent did not state anything about the lands which were the subject matter of sale transaction covered by Exhibits 42 to 44. He did not produce any plan showing location of the acquired land and the lands covered by Exhibits 42 to 44. He did not adduce any other evidence about the market value of the acquired land. In the cross examination, he denied the suggestion that the suit land was away from Deogad-Nipani. He further stated that there was no market in the village and the people had to go at far away places for marketing. He also denied that village Vaibhavwadi was a small village. 6. Though the respondent denied the suggestion that the suit land was not under cultivation, he did not adduce any evidence as to what was he sowing in the land and what was the income that he was deriving from the acquired land. - 5 - 7. Learned A.G.P. appearing for the appellant submitted that the three sale instances covered by the three sale deeds could not be relied upon as the sale deeds were not proved. Neither the originals nor the certified copies of the sale deeds were produced on record. However, Index II extracts of the registration of sale deeds were produced on record at Exhibits 42 to 44. Section 51A of the Act states that in any proceedings under the Act, a certified copy of the document registered under the Registration Act, 1908, including a copy given under section 57 of the Registration Act, may be accepted as the evidence of the transaction recorded in such document. Section 51A was introduced into the Act by an amendment to dispense with the requirement of producing original sale deed to prove the transaction and a certified copy of the sale deed has been made admissible. However, a mere entry contained in the Index II register or a certified copy thereof is not admissible in evidence under section 51A of the Act. It would not be permissible to determine the market value of the acquired land on the basis of the entries made in the Index II registers or certified copy of such entries. In the absence of the sale deeds or their certified copies which are admissible under section 51A of the Act, it cannot be said that Index II extracts at Exhibits 42 to 44 would prove the valuation - 6 - of the acquired land on the dates of those transactions. An index II extract does not give location of the land or its boundaries. It does not give the description of the property. It also does not mention presence or absence of any special advantages or disadvantages or features relating to the land which may be found in the sale deed. An index II extract only mentions the survey number of the land, area, names of the parties, date of transaction and the consideration. It does not mention anything else. In my view, therefore, merely on the basis of an index II extract, it is not possible to ascertain the market value of the acquired land. 8. Though in his examination in chief the respondent has stated that he had filed copies of Index II extracts, he did not state what was the distance between the suit lands covered by Index II extracts and the acquired land. He also did not state what was the non-agricultural potential of the said lands and what was the difference between the non-agricultural potential of those lands and the acquired land. In the circumstances, in my view, Index II extracts would be of no assistance for the purpose of arriving at the market value of the acquired land. 9. That apart, Index II extract at Exhibit 42 is in respect of an agreement of sale. Index II extract at - 7 - Exhibit 43 is in respect of sale deed dated 20th April 1990. Index II extract at Exhibit 44 is in respect of sale deed dated 17th December 1990. Thus the two sale deeds mentioned in the Index II extracts at Exhibits 43 and 44 were executed at least two years after the notification under section 4 of the Act and are not relevant for the purpose of determining the market value on the date of notification. As regards the agreement for sale covered by Exhibit 42, it shows that half share of survey no.20/1 admeasuring 1.5 gunthas was agreed to be sold at Rs.3,000/-. Land covered by this agreement is a small piece of land. Market value of a small piece of land, which could often be strategically located, would not be a good pointer about the market value of large tracts of land. The acquired land was 1 hectare 49 ares which is equivalent to 3 acres 29 gunthas. When market price of a large piece of land is to be considered, allowance would have to be made for development such as open areas to be kept, roads to be provided in the layout and the expenses for providing the infrastructure. Therefore, this agreement of sale of a small plot of land would also not be relevant for the purpose of considering the market value of the acquired land. 10. The reference court has referred to two sale instances which was referred in the award of the Land - 8 - Acquisition Officer. The award must be read as a whole. It is not proper for a reference court to pick and choose one or two of the 15 sale instances referred to by the Land Acquisition Officer and determine the market value of the land on the basis of those instances ignoring others without comparing the relative advantages and disadvantages applicable to each of those lands and the acquired land. After taking into consideration the 15 instances, the Land Acquisition Officer has determined the value. Burden of proving that the determination of the value of the acquired land by the Land Acquisition Officer was incorrect and that the market value was more than the offer made in the award is always on the person who challenges the award. The respondent had not discharged that burden by adducing cogent evidence. The reference court erred in holding that the offer of compensation made in the award was of an inadequate amount and the market value was more than determined by the Land Acquisition Officer. In the circumstances, I answer both the points in the negative. 11. For these reasons, the appeal is required to be allowed. The impugned judgment is set aside and the award passed by the Land Acquisition Officer is restored. No costs. - 9 - (D.G. KARNIK, J.)