1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.229/1994 The State of Maharashtra Through The Spl. Land Acquisition Officer, M.I.W., Jalgaon. .. APPELLANT VERSUS Pratap Ishram, Age Major, Occu. Farmer, R/o. Jinsi, Tq. Raver, Dist. Jalgaon. .. RESPONDENT with FIRST APPEAL NO.231/1994 The State of Maharashtra Through The Spl. Land Acquisition Officer, M.I.W., Jalgaon. .. APPELLANT VERSUS Smt. Reshmabai Khima Pawar, Age Major, Occu. Farmer, R/o. Jinsi, Tq. Raver, Dist. Jalgaon. .. RESPONDENT Shri N. H. Borade, AGP for appellant State in both the appeals. Shri V.G. Sakolkar, Advocate for respondent in both the appeals. CORAM : R.K.DESHPANDE,J. DATE : 3rd August 2009 ORAL JUDGMENT : 1] Both these appeals preferred by the State challenging common 2 judgment and order dated 25/6/1993 passed by the learned Joint Civil Judge Senior Division, Jalgaon in Land Acquisition Reference No.247/1988 and Land Acquisition Reference No.249/1988 enhancing the compensation in respect of the lands acquired. 2] The respondent no.1 in First Appeal No.229/1994 is the applicant/claimant in Land Acquisition Reference No.247/1988 and the owner of land Gat No.69 admeasuring 7 Hectares 82 Aars and 22 Acres Pot Kharab land situated at village Jinsi, Tq. Raver, Dist.Jalgaon. In First Appeal No.231/1994 respondent no.1 Smt.Reshmabai is the original applicant/claimant in Land Acquisition Reference NO.249/1988 and the owner of Gat No.122 admeasuring 7 Hectares and 98 Aar. 3] The State Government issued Notification dated 5/12/1979 under Section 4(1) of the Land Acquisition Act, 1894 for acquisition of the lands owned by the respondents in both these appeals for Ambhora dam, the public purpose. It was published in the official gazette on 29/9/1981. On 28/9/83, the Special Land Acquisition Officer passed an Award granting total compensation of Rs.44,116.30 to the applicant/claimants in Land Acquisition Reference No.247/1988 and granted Rs.43,928.85 by way of compensation to the applicant-claimant in Land Acquisition Reference NO.249/1988. 3 4] Being dissatisfied by the compensation granted by the S.LA.O. as aforesaid, the respondents in both these appeals preferred the aforesaid reference applications claiming enhancement of compensation at the rate of Rs.80,000/- to 90,000/- per Hectare in respect of lands and Rs.3000/- to 4000/- in respect of the trees. In support of their claims, both the claimants examined themselves and produced on record Exh.13, the sale deed in respect of Gat No.201 Survey No.51/2/B situated at Kochur(Bk), evidencing sale of 20 Aar of land for Rs.12,000/-. The learned Judge of the trial Court relying upon the oral evidence adduced by the claimants and the sale deed at Exh.13, recorded a finding, determining the market value of the land, at Rs.60,000/- per Hectare. The learned Judge, accepted the version of the claimants that the fertility and the location of the lands under acquisition and the one contained in Exh.13 is the same, both the lands are Jirayat lands. It was accepted that the land under Exh.13, is situated at the distance of 5-6 ft. from the lands under acquisition, the sale deed Exh.13 is in proximity with the Notification under Section 4 and for all these reasons, the learned Judge of the Trial Court held that the sale deed at Exh.13 is comparable with the lands under acquisition. The learned Judge observed that in the absence of there being any evidence led on behalf of the State either documentary or oral, there was no reason to discard the sale deed at Exh.13 and the version of the claimants. 5] Shri N.H.Borade, learned AGP appearing for the appellant-State 4 contended that there is absolutely no comparison in between the land covered by Exh.13 sale deed and the lands under acquisition. He contended that the learned Judge of the trial Court has accepted the version of the claimants as a gospel truth and in a very cryptic manner, had arrived at conclusion that the sale deed at Exh.13 can be relied upon. It is his contention that the learned Judge of the trial Court has failed to take into consideration the cross examination of the claimants, in which the State has elicited certain admissions.The learned AGP further submitted that the land covered by Exh.13, is a small piece of land i.e. 20 Aar and there is sufficient evidence brought on record, to establish that the said sale was not genuine one. According to him, the appellants-claimants are required to be non suited on the basis of their own evidence and there was no need for the State to adduce any evidence on record. 6] The learned counsel for the respondent no.1 on the other hand contended that he t rial Court has rightly appreciated the evidence on record. The State has failed to bring on record any documentary or oral evidence to discard the version of the claimants. According to him, the land revenue assessment in respect of the land covered by Exh.13 clearly makes the said land comparable with the lands under acquisition and there is ample evidence on record to show that both the lands were Jirayat lands. 7] It cannot be disputed that it is for the claimant to bring on record the 5 sufficient evidence, to establish the claim for enhancement of compensation. The claimant has to stand on his own legs and he cannot base his claim upon the witnesses to be examined by the other side. He has to establish his case by leading a positive evidence. While determining the market value of the land, it has to be established that the sale instance relied upon is a genuine sale transaction and was executed at the time proximate to the notification issued under Section 4 of the Land Acquisition Act. It has also to be established that the land covered under the sale instances have been located in the vicinity of the lands acquired and the size of the plots/lands, covered by sale instances, are comparable to the lands under acquisition. 8] Now coming to the documentary evidence on Exh.13, which is a sale deed dated 19/1/1979, what is required to be noted is that the land is located at Kochur (Bk) and having area of 20 Aars. Namdeo Nathu Bichare the owner of the said land has sold it to one Bhagwan Bhika Mahajan. The land of the purchaser is situated at just adjacent the southern boundary of the land of the vendor. Now coming to the evidence of the claimant, the trial Court has relied upon the statement of the claimant made in para 1 of his examination in chief that the land shown under Exh.13 is at a distance of 5-6 ft. from his field. The learned AGP has pointed out that there is a mistake in the English version of the claimant. The Marathi version if looked at, indicates that it is at the distance of 5-6 fields, from the field of 6 the claimant. However, there is no evidence brought on record as to the area of these 5 to 6 fields. The learned AGP has further invited my attention to the admissions given by the claimant in cross examination. The claimant has in categorical terms admitted that he has not produced on record the 7/12 extracts either in respect of Exh.13 or in respect of lands under acquisition. He has further admitted that he has not produced any documents on record to show the quality of the lands under acquisition and the one which is covered by Exh.13 is the same, so also the location. The persons, who are parties to the sale deed at Exh. 13, have also not been examined. In view of this, the Reference Court, in my view, has committed a grave error in relying upon the sale deed at Exh. 13. 9] It is now well settled that Reference Court under section 18 of the Land Acquisition Act is not an appeal against the award and the Court can not take in to account the material relied upon by the Land Acquisition Officer in his award, unless the same is produced and proved before the Court. The claimant, who is in a position of plaintiff, is required to show that the price offered for his land in the award, is inadequate on the basis of the material produced in the Court. Only genuine instances can be taken in to consideration and the sale instances which are rigged up in the anticipation of the acquisition of the land cannot be relied upon. In this case, the claimant has already admitted in his cross examination that in the year 1978 itself the survey and measurement was conducted. The sale deed 7 at Exh. 13 is dated 19.1.1979 and seems to be induced/rigged up in the anticipation of acquisition of land. Under these circumstances, the sale deed at Exh. 13 could not have been relied upon for granting enhancement of compensation by the learned Judge of the Reference Court. 10] Except the version of claimant, which is full of admissions in cross examination, against his claim and the sale deed at Exh. 13, there is no other evidence available on record to support the claim for enhancement of compensation as has been granted by the Reference Court. 11] In view of above, the appeals filed by the State succeed. The judgment and award dated 25th June 1993 passed by the learned Joint Civil Judge, Senior Division, Jalgaon dated 25/6/1993 in Land Acquisition Reference Nos. 247/1988 and 249/1988 are quashed and set aside. The appeals are, thus, allowed. However, there shall be no order as to costs. 12] It seems that Civil Application No.2306/1994 was filed by claimant Smt.Reshmabai W/o Khima Pawar for direction to the Collector, Jalgaon, to deposit the amount in the Court of Joint Civil Judge, Senior Division, Jalgaon. A further relief was also claimed in this Application seeking direction to permit the applicant to withdraw an amount of Rs.24,86,903/- by taking necessary securities from the applicant. This was Civil Application in First Appeal No.231/1994. Similar application i.e. Civil 8 Application No.2129/1994 in First Appeal No.229/1994 was filed by Pratap Ishram for direction to the Collector to deposit the amount in the Court of Joint Civil Judge, Senior Division, Jalgaon and seeking further direction to permit the applicant to withdraw an amount of Rs.34,69,639/- by taking necessary securities from the applicant. On both these applications, common order seems to have been passed on 28/6/1994, which is reproduced as under : “ Shri V.B.Ghatge,AGP for Orig.Appellant. Shri V.G.Sakolkar, Adv.for Respdt. CORAM : MAJITHIA AND MUTALIK,JJ. Heard Shri Ghatge, learned A.G.P. for the appellant and Shri V.G.Sakolkar, learned Advocate for respondent in both these first appeals. The First appeals are admitted. We have perused the judgment. It is submitted by Shri V.G.Sakolkar, learned Advocate for the respondent that the appellant has already sanctioned an amount of Rs.49,46,540/- in both these matters (Rs.24,59,637/-) in L.R.No.247/88 and Rs.24,86,903/- in L.R.No.249/88). We accordingly direct the appellant to deposit the said amount of Rs.49,46,540/-in this Court within one month. After the said amount is deposited the same be paid to the respondent by crossed account payee cheque. However, we direct that the respondent in both these first appeals shall furnish the bank guarantee or security of suitable immovable properly for 9 Rs.50,00,000/- in both these matters. Both the Civil Applications stand disposed of. Date : 28/6/1994.” 13] If the claimants have withdrawn the amount as stated in the order reproduced above, then they shall redeposit the same in the Court within a period of 8 weeks from today alongwith interest at the rate of 9% p.a. from the date of withdrawal of amount till its deposit in the Court. If the amount is not deposited within the stipulated period, then the Collector shall be at liberty to invoke the bank guarantee, if it is furnished or to proceed against the security, in accordance with law for realization of the amount. [R.K.DESHPANDE, J.] ssc/fa229-94