1 F.A.NO.46/1995. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. FIRST APPEAL NO.46 OF 1995. Bali S/o Shankar, Age:33 years, Occ: Agri. & service, R/o: Mugat, Tal. & Dist.Nanded, at present at Aurangabad. ...Appellant. (Ori. Claimant. ) Versus The State of Maharashtra, Through The Special Land Acquisition Officer, U.P.P.I. Nanded. ...Respondent. ... Mr.A.G.Godhamgaonkar, Advocate for the appellant. Mr.J.S.Gavane, AGP for the respondent. ... CORAM: A.V.NIRGUDE,J. Date : 27th July, 2009. ORAL JUDGMENT: 1. This appeal is challenging the judgment and award dated 6th September, 1994 passed by 3rd Addl. District Judge, Nanded in Land Acquisition Reference No.85/1992 awarding enhanced compensation to the 2 F.A.NO.46/1995. appellant. 2. The appellant's land admeasuring 72 R was acquired along with other land of the village for the purpose of construction of a canal. Notification under Section 4 of the Land Acquisition Act, was published in Government Gazette on 21st July, 1988. Notification under Section 6 of the Act, was published in November, 1989. The appellant as well as other land owners filed claim instances to the notice under Section 9 of the Act. They even filed supporting documents to prove their case. The Land Acquisition Officer collected data regarding sale transactions of the village for the period between 1985 to 1988, in respect of the village from which the land in question was acquired. There were 43 sale instances before the Land Acquisition Officer. The Land Acquisition Officer referred to one sale instance of 10th of April, 1985, but did not refer to other sale instances and simply observed that looking to the trend of increasing prices, he should fix the market value of the land in question at Rs.14,000/- per hectare. The Special Land Acquisition Officer did not refer to a sale instance of 1988 or 1987 while determining the market value. The Special Land Acquisition Officer did not consider the fact that due to the acquisition of the small portion of the land, the appellant's land was divided into two 3 F.A.NO.46/1995. portions and thus there occurred severance of the land. 3. As against this, the appellant approached the reference Court and demanded compensation @Rs. 50,000/- per acre. The appellant recorded his father's deposition who was cultivating the land for him. He also produced on record five sale instances of the land of his village. Exhibits.18 and 19 are of 3rd of April, 1989. Sale instances at Exhibits.20, 23 and 24 are of year 1992. The learned Judge discarded all the sale instances saying that they were subsequent to the date of notification under Section 4 of the Act. Despite of rejection of this evidence, the learned Judge of the lower Court enhanced the compensation to Rs.18,000/- per hectare. He said, for such enhancement he had appreciated the deposition of the appellant's father. 4. The question is, whether there was sufficient evidence before the Reference Court for determination of the fair market value of the land? Having regard to the evidence adduced by the appellant in support of his case and the respondent's failure to adduce evidence, I think, both the parties have failed to produce before the Reference Court, relevant evidence for determination of the fair market value of the land. As said above, on one hand the appellant 4 F.A.NO.46/1995. contended that the market value of the land at the relevant time was more than Rs.50,000/- per acre, but he could not adduce evidence in support of his case. Special Land Acquisition Officer has mentioned in his award that he has seen as many as 43 sale instances for the period between 1985 to 1988. It is surprising that the appellant and his legal advisory could not lay their hands on the sale instances of 1987 and 1988. They produced only sale instances which are post dated. As against this, the respondent simply failed to adduce any evidence before the Court. The respondent had ample material with them. The award and the data regarding the sale instances were available with Special Land Acquisition Officer collected during the process of land acquisition, they could have easily brought this data before the Lower Court. The learned Judge of the Reference Court very clearly and rightly stated in the judgment that since the reference is not an appeal, he should not look into the evidence which the Land Acquisition Officer has relied and used for passing the award. The learned Judge of the Reference Court, said that, such material should be brought before the Court by way of evidence by either of the parties. I am of the view that every Judge of the Reference Court would certainly handicap, if there is hardly any evidence before him for determination of the fair market value of the land. And, in such situation, if the learned 5 F.A.NO.46/1995. Judge has determined certain market value, it would be merely a guess. On one hand, learned Judge criticized the award saying that it was arbitrary, but the same criticism is applicable to his judgment also. At least, the Special Land Acquisition Officer had before him a data of sale instances of three years prior to the notification. The learned Judge did not even have that data. In my view, in such situation, the appellant was deprived of a fair trial and proper appreciation of his claim. The Judgment and award passed by the reference Court, deserves to be set aside and the case deserves to be remanded back for fresh trial, whereby both the parties would have opportunity to lead more evidence. 5. The appeal is allowed. The impugned Judgment and award is set aside. 6. The Land Acquisition Reference is remanded back to the lower Court. The learned Judge of the Reference Court shall allow both the parties to lead the evidence and decide the reference on merits. (A.V.NIRGUDE,J.) lkp