ash 1 fa-337.94group IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.337 OF 1994 & Shri Rajaram Maruti Karade, ) Aged 60 yrs., Occ. Agriculture, ) R/o. Tung, Tal. Miraj, District – Sangli. ).. Petitioner Vs The Collector, Sangli, ) (Summons to be served through the ) Office of A.G.P. High Court, ) Appellate Side, Bombay.) ).. Respondent ­­ Shri T.S. Ingale for the Petitioner. Shri A.R. Patil, AGP for the Respondent. ­­ AND FIRST APPEAL NO.338 OF 1994 Shri Pandurang Malhari Madne, ) Aged 47 yrs., Occ. Agriculture, ) R/o. Tung, Tal. Miraj, District – Sangli. ).. Petitioner Vs The Collector, Sangli, ) (Summons to be served through the ) Office of A.G.P. High Court, ) Appellate Side, Bombay.) ).. Respondent ­­ Shri T.S. Ingale for the Petitioner. Shri A.R. Patil, AGP for the Respondent. ­­ ash 2 fa-337.94group AND FIRST APPEAL NO.339 OF 1994 WITH CROSS OBJECTION ST.NO.6560 OF 1999 Shri Rajaram Dnyanu Patil, ) since deceased by Legal Heirs & ) Representatives :­ 1. Smt. Leelavati Rajaram Patil, ) Age 60 yrs., Occ.­Household, ) 2. Shri Vasudeo Rajaram Patil, ) Age 32 yrs., Occ.­Agriculture, ) Both R/o. Tung, Tal. Miraj, ) District – Sangli. ).. Petitioners Vs The Collector, Sangli, ).. Respondent ­­ Shri T.S. Ingale for the Petitioner. Shri A.R. Patil, AGP for the Respondent. ­­ AND FIRST APPEAL NO.340 OF 1994 Shri Dnyanu Ganpati Kapse, ) Since deceased by his heirs and legal ) representatives : ­ 1. Dilip Dnyanadev Kapse, ) aged 45 years, Occ. Service and ) agriculturist. ) 2. Sonabai Dnyanu Kapse, ) aged 65 yrs., Occ. Agriculture, ) Both R/o. Tung, Tal. Miraj, ) District – Sangli. ).. Petitioners ash 3 fa-337.94group Vs The Collector, Sangli, ) (Summons to be served through the ) Office of A.G.P. High Court, ) Appellate Side, Bombay.) ).. Respondent ­­ Shri T.S. Ingale for the Petitioner. Shri A.R. Patil, AGP for the Respondent. ­­ AND FIRST APPEAL NO.341 OF 1994 WITH CROSS OBJJECTION ST. No. 6558 of 1999 Shri Shankar Dnyanu Patil, ) since deceased by legal heirs:­ ) 1. Shri Dattatraya Shankar Patil, ) 2. Smt. Akkatai Shankar Patil, ) 3. Sou. Shalan Vitthal Patil, ) 4. Sou Sarojani Nanaso Patil, ) 5. Sou. Shobha Mohan Kadam, ) 6. Sou. Shubhangi Sayajirao Mane, ) 7. Sou Seema Pramod Patil, ) Nos.2 to 7 through their Power of ) Attorney Holder No.1. ).. Petitioners Vs The Collector, Sangli, ) (Summons to be served through the ) Office of A.G.P. High Court, ) Appellate Side, Bombay.) ).. Respondent ­­ Shri T.S. Ingale for the Petitioner. Shri A.R. Patil, AGP for the Respondent. ­­ ash 4 fa-337.94group AND FIRST APPEAL NO.342 OF 1994 WITH CROSS OBJECTION ST. NO.6554 OF 1999 Shri Arun Baburao Magdum, ) Aged 42 yrs., Occ. Agriculture, ) R/o. Tung, Tal. Miraj, District – Sangli. ).. Petitioner Vs The Collector, Sangli, ) (Summons to be served through the ) Office of A.G.P. High Court, ) Appellate Side, Bombay.) ).. Respondent ­­ Shri T.S. Ingale for the Petitioner. Shri A.R. Patil, AGP for the Respondent. ­­ CORAM ; A.S. OKA, J DATED : 10TH AUGUST, 2011 ORAL JUDGMENT : . These Appeals and cross objections can be disposed of by a common judgment. The acquisition relates to the lands at village Tunga which were notified under Section 4(1) of the Land Acquisition Act 1894 ( hereinafter referred to as “the said Act”) on 28th January, 1987. An award under Section 11 of the said Act was made on 18th September, 1989. As the award was not accepted, at the instance of the Appellants, references were made under the said Act. The details of the area of the lands and the market value awarded by the Special Land Acquisition Officer and the Reference Court are as under:­ ash 5 fa-337.94group Sr. No Land Refer­ ence No F.A.No. Land Gat No Are H. A. Assess­ ment Rs. Ps Assess ­ment per H. Rs. Ps Amount awarded under Awardby S.L.O.per Hector Amount awarded Reference Court per Hector. 1. 33/91 337/94 701/1 0=38 1=05 2=76 Rs19,000/­ Rs25,000/­ 2. 34/91 338/94 549/2 0=44 2=34 5=32 34,000/­ 50,000/­ 3. 35/91 339/94 352/2 0=93 7=32 7=88 37,500/­ 50,000/­ 800/1 0=12 0=75 6=25 23,000/­ 30,000/­ 4. 36/91 340/94 417/2 0=60 4=50 7=50 34,500/­ 50,000/­ 5. 37/91 341/94 352 1=62 12=77 7=88 37,000/­ 50,000/­ 6. 38/91 342/94 362/2 0=69 5­52 8=00 25,000/­ 40,000/­ 2. Learned counsel appearing for the Appellants has taken the Court through the notes of evidence and the sale instances on record. He pointed out that the Reference Court has relied upon the sale instances produced by the Appellants. He submitted that sale instances which were held to be in respect of the comparable lands show that the market value of comparable lands from the years 1982 to 1985 was in the range of Rs.80,000/­ per Hectare to Rs.1,20,000/­ per Hectare. He submitted that notwithstanding the findings recorded regarding comparability of the lands subject matter of the sale instances, the ash 6 fa-337.94group maximum market value fixed by the Reference Court is Rs.50,000/­ per Hectare. He pointed out the findings recorded by the Reference Court. He submitted that the Reference Court has taken into consideration the revenue assessment of the acquired land as well as the revenue assessment of the land subject matter of the sale instances. He submitted that relying upon the findings of the Reference Court, in any case the minimum market value of the acquired lands on the relevant date could not be less than Rs.80,000/­. He pointed out oral evidence of the witnesses examined by the Appellants and submitted that the compensation granted was on a lower side. He prayed for enhancement in market value. The learned AGP in support of the cross objections in three appeals submitted that the sale instances were not duly proved as the original sale deeds were not produced. He submitted that the said sale instances were of the years 1982, 1983 and 1985 where as the relevant date in the present case is 28th January, 1987. He submitted that the Appellants failed to adduce evidence to show that the value reflected from the Sale Deeds is the true market value which could have been offered by a bonafide purchaser. He pointed out that in any case, the Sale Deeds have been executed much before the relevant date i.e. 28th January, 1987 and hence the same were not comparable. ash 7 fa-337.94group 3. I have carefully considered the submissions. I have perused the notes of evidence. The Claimant in a Reference under Section 18 of the said Act is in position of a Plaintiff. The burden is on the Claimant to show that the market value offered by an award under Section 11 of the said Act is inadequate. In these cases, the market value offered by Awards under Section 11 of the said Act is ranging between Rs.19,000/­ per Hectare and Rs.37,500/­ per Hectare. The Reference Court has enhanced the market value to Rs.25,000/­ per Hectare where the market value offered was Rs.19,000/­ per Hectare. The Reference Court has enhanced the market value to Rs.40,000/­ per Hectare whereas the market value offered under Section 11 of the said Act was Rs.25,000/­ per Hectare. Where the market value was offered at Rs.23,000/­ per Hectare, the enhanced market value has been fixed at Rs.30,000/­ per Hectare, and in remaining three cases the market value has been enhanced to Rs.50,000/­ per Hectare. 4. In First Appeal No.337 of 1994, the Appellant stepped into the witness box. In Paragraph 3 of his deposition, he has merely referred to three sale deeds and stated that the acquired lands were superior to the lands subject matter of these three sale deeds. The case of the Appellant was that the acquired land was irrigated through Krishnamal Lift Irrigation Scheme. The Appellant examined one Shankar Hari Dange, who was the chairman of the said Scheme. In the ash 8 fa-337.94group cross­examination, the Claimant admitted that he has not produced any map to show that the acquired land was near the Sale Deed lands. He admitted that he has not produced any receipt showing payment of water tax under the irrigation scheme. He denied the correctness of the suggestion that the lands subject matter of the sale deeds which were purchased at higher price by the purchasers who were in need of the said lands. 5. The witness Shankar H. Dange deposed that the Appelalnt was a member of Krishnamal Lift Irrigation Scheme No.1 since 1968. He produced the certificate issued by him in that behalf. He stated that the Survey No.104 has been changed into Block No.701. He stated that the Appellant was using the water of irrigation scheme for his land bearing Survey No.104. He produced a carbon copy of the bill dated 1st November, 1986 which was prepared by the then Secretary of the Society. He produced Ledger Entries from Pages Nos.1063 to 1068 which were in the name of the Appellant. He stated that the Survey No.104 was mentioned in the Ledger. He stated that the Ledger for the year 1985 was not available. In the cross­examination, the witness admitted that in the water tax bill, block number of the land has been written and not the survey number. He admitted that the survey number of the land was changed into a block number prior to the year 1969. He admitted that on page no.1061 of the ledger,in front of block ash 9 fa-337.94group no.1, there is erasure. He stated that in the ledger, there was a column for block number but in fact survey number was written in the said column. He admitted that in the 7/12 extracts of the village Tunga, the block numbers of the land are mentioned and the survey numbers are not stated. He admitted that he was unable to tell as to which survey number of the village Tunga has been changed into which block number. He admitted that he was not aware that the survey no.104 has been changed into block number 701. He admitted that on page no. 1064, block No.104 was written but again it was scratched and only figure “1” has been maintained. The Appellant did not produce any receipt to show payment to the Irrigation society. Considering the aforesaid admissions of the witness Shankar H. Dange, the learned Judge has disbelieved the evidence of the said witness. Looking to the cross­examination of the witness which is referred to above, the evidence of the said witness does not inspire confidence and therefore, his evidence has been rightly disbelieved. 6. The claimant in LAR No.34 of 1991 ( First Appeal No.338 of 1994 ) made a reference to three sale deeds of 9th December, 1982, 25th May, 1983 and 29th March, 1985. He stated that the lands subject matter of the sale deeds were at a distance of 300 to 400 feet away from the acquired land. He examined the witness Shri Shankar Haribi Dabade, a person who was allegedly the Chairman of the Krishnamal ash 10 fa-337.94group Lift Irrigation Scheme in the village Tunga. He stated that he had maintained the ledger and Patkari book for showing that the Appellant­ Claimant was using the water from the said scheme. He stated that he will produce xerox copies of the Registers as the original were with the Sugar Factory. He stated that the entries in the name of the Appellant are made on Page Numbers 905 to 910 for the years 1984­1985 to 1986­1987. He stated that the survey numbers of the land to which water was supplied have been mentioned in the Register. He stated that the Land Survey No.70 has been converted into Block No.549. The said witness who was examined on 29th July, 1993 stated that he was the Chairman of the Society for two years. Therefore, he was not the Chairman of the Scheme in the year 1987. He did not produce the original register. Therefore, his evidence is hardly helpful to establish that the Claimant used to irrigate the land by taking water supply from the said Scheme. 7. The claimant in the Land Acquisition Reference No.35 of 1991 ( First Appeal No.339 of 1994) examined his brother as a witness. He again made a reference to the aforesaid sale deeds and has stated that the sale deeds were in respect of the lands at a distance of 300 to 400 feet away from the acquired land. Even in this case, the Appellant examined the said Shankar Dange who was the Chairman of Krishnamal Lift Irrigation Scheme. For the reasons recorded earlier, his evidence ash 11 fa-337.94group has been rightly discarded. 8. In Land Acquisition Reference No.37 of 1991 ( First Appeal No.341 of 1994), the Appellant stepped into witness box. He also made a reference to the aforesaid three sale deeds and stated that the lands subject matter of the said sale deeds are at the distance of 300 to 400 feet away from the acquired lands. 9. As far as Land Acquisition Reference No.38 of 1991 ( First Appeal No.342 of 1994) is concerned, the Appellant examined himself who has stated that the lands subject matter of the said three sale deeds were at a distance of 300 to 400 feet away from the acquired land. In this case, the Appellant examined Shankar H Dange, the Chairman of Krishnamal Lift Irrigation Scheme. Even his evidence suffers from the same infirmities and therefore, the same has been rejected by the Trial Court. 10. As far as Land Acquisition Reference No.36 of 1991 ( First Appeal No.340 of 1994) is concerned, the concerned Appellant examined his son. He stated that the lands subject matter of the aforesaid three sale deeds were at a distance of 800 feet away from the acquired land. He also stated that the acaquired land is of a superior quality than the aforesaid lands. Even in this case, the Appellant ash 12 fa-337.94group examined Shankar H Dange, the Chairman of Krishnamal Lift Irrigation Scheme whose evidence has been rightly discarded by the Trial Court, as observed earlier. 11. Thus, the case of the Appellant is based only on the three Sale Deeds. Though the original Sale Deeds are admittedly not on record, the learned Trial Judge admitted photocopies thereof in evidence and the same have been marked as Exhibits 18, 19 and 20. The said documents have been marked as exhibits without any objection by the Respondent and, therefore, the issue of admissibility of the documents in evidence cannot be agitated in Appeal. 12. As pointed out earlier, the relevant date for determination of the market value in the present cases is 28th January, 1987. The market value reflected from the first Sale Deed at Exhibit­18 as of 9th December, 1982 is for Rs.90,000/­ per Hectare. The market value reflected from the second Sale Deed at Exhibit – 19 dated 23rd May, 1983 is of Rs.1,20,000/­ per Hectare and the market value reflected from the third Sale Deed at Exhibit – 20 dated 29th March, 1985 is Rs. 80,000/­ per Hectare. So the market value of Rs.90,000/­ substantially increased from December, 1982 to May, 1983 and again came down in March, 1985 to Rs.80,000/­. The Sale Deed dated 9th December, 1982 at Exhibit 18 has been executed more than four years prior to the ash 13 fa-337.94group Notification under Section 4(1) of the said Act in the present cases. Similarly, the Sale Deed dated 23rd May, 1983 has been executed about three years prior to the relevant date and the Sale Deed dated 29th March, 1985 has been executed approximately two years prior to the relevant date i.e. 28th January, 1987. The said Sale Deeds of 1982 and 1983 show escalation by Rs.30,000/­ per Hectare from December, 1982 to 23rd May, 1983. In the Sale Deed at Exhibit­18 dated 9th December, 1982, the vendor has stated that he was an old person and he was not in a position to cultivate the land and, therefore, he has sold the land. It is pertinent to note that in case of all the three Sale Deeds, the Appellants have not examined either the purchasers or vendors. The Sale Deed dated 29th March, 1985 which is closest to the relevant date. The recitals of the said Sale Deed record that the seller was indebted and for repayment of debts he decided to sell the land and that he accepted the highest offer which was received from the purchaser. Since the Vendor was indebted, the possibility of the Vendor making a distress sale cannot be ruled out especially when both the Vendor and the purchaser have not been examined. The market value is the one which is offered by a bona fide buyer. Neither the purchaser nor the seller under the Sale Deed dated 29th March, 1985 has been examined by the Appellant and, therefore, the said Sale Deed was required to be kept outside the consideration. ash 14 fa-337.94group 13. The other two Sale Deeds of the year 1982­83 are too remote in point of time and cannot be considered to be comparable. The normal submission that with the passage of time, there is bound to be steady increase in the prices of the lands cannot be accepted inasmuch as the prices shown by the three Sale Deeds show that between the years 1982­1983, the price was between Rs.90,000/­ to Rs. 1,20,000/­ per Hectare and in the year 1985, the same came down to Rs.80,000/­ per Hectare. Thus, the case of steady escalation in the market value cannot be accepted. Therefore, it is unsafe to rely upon the Sale Deeds dated 9th December, 1982 and 23rd May, 1983 for determination of the market value as of 28th January, 1987. 14. Hence, these are the cases where there was no legal evidence adduced by the Appellants to discharge the burden on them and the Appellants have failed to discharge the burden. In the circumstances, these Appeals must fail and the cross objections will have to be allowed. 15. Hence, I pass the following order: (a) First Appeal No.337 of 1994 is dismissed with no orders as to costs; ash 15 fa-337.94group (b) First Appeal No.338 of 1994 is dismissed with no orders as to costs; (c) First Appeal No.339 of 1994 is dismissed with no orders as to costs. The Cross Objection Stamp No. 6560 of 1999 is allowed and the impugned Judgment and Award dated 5th July, 1993 passed in Land Acquisition Reference No.35 of 1991 is quashed and set aside and the Reference stands dismissed. (d) First Appeal No.341 of 1994 is dismissed with no orders as to costs. The Cross Objection Stamp No. 6558 of 1994 is allowed and the impugned judgment and award dated 8th July, 1993 passed in Land Acquisition Reference No.37 of 1991 is quashed and set aside and the Reference stands dismissed. (e) First Appeal No.342 of 1994 is dismissed with no orders as to costs. The Cross Objection Stamp No. 6554 of 1999 is allowed and the impugned judgment and award dated 13th July, 1993 passed in Land Acquisition Reference No.38 of 1991 is quashed and set aside and the Reference stands dismissed. ash 16 fa-337.94group (f) First Appeal No.340 of 1994 is dismissed with no orders as to costs. ( A.S. OKA, J )