1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.515 OF 1994 1. Ratnakar S/o.Madhukarrao Kerkar, Age-28 years, Occu-Agriculturist, 2. Dinkar S/o.Madhukarrao Kerkar, Age-26 years, Occu-Agriculturist, 3. Rajesh S/o.Madhukarrao Kerkar, Age-24 years, 4. Girish S/o.Madhukarrao Kerkar, Age-22 years, 5. Nagesh S/o.Sudhakarrao Kerkar, Age-20 years, 6. Kamlakar S/o.Madhukarrao Kerkar, Age-32 years, Occu-Agriculturist, All appellants are R/o.Gangakhed, Tal.Gangakhed, Dist.Parbhani APPELLANTS VERSUS 1. State of Maharashtra, Through Collector, Parbhani, 2. The Special Land Acquisition Officer, Minor Irrigation Works, Parbhani RESPONDENTS WITH FIRST APPEAL NO.624 OF 1994 2 1. Laxman S/o.Apparao Bhairat, Age-60 years, Occu-Agriculturist, 2. Vishnu S/o.Laxman Bhairat, Age-25 years, Occu-Agriculturist, Both are R/o.Gangakhed, Tal.Gangakhed, Dist. Parbhani APPELLANTS VERSUS 1. State of Maharashtra, Through Collector, Parbhani, 2. The Special Land Acquisition Officer, Minor Irrigation Works, Parbhani RESPONDENTS WITH FIRST APPEAL NO.423 OF 2003 1. Kamlakar S/o.Madhukar Kerkar, Age-28 years, 2. Ratnakar S/o.Madhukar Kerkar, Age-25 years, 3. Dinkar S/o.Madhukar Kerkar, Age-20 years, 4. Rajesh S/o.Madhukarrao Kerkar, Age-20 years, 5. Sunandabai W/o.Sudhakar Age-35 years, Occu-Household and Agriculturist, 6. Girish S/o.Sudhakar, Age-22 years, 3 7. Nagesh S/o.Sudhakar, Age-22 years, APPELLANTS VERSUS 1. The State of Maharashtra, Through Collector, Parbhani, 2. The Special Land Acquisition Officer, M.K.V. Parbhani RESPONDENTS Mr.S.V.Chandole h/f. Mr.A.S.Deshmukh, learned counsel for the appellants. Mr.S.D.Kaldate and Mrs.V.A.Shinde, learned A.G.P’s for respondent/ State (CORAM : A.V.POTDAR, J.) DATE : 30/11/2011 ORAL JUDGMENT : 1. First appeal no.515/1994 and F.A.No.624/1994 are arise out of the common judgment and award passed by the 2nd Jt.Civil Judge S.D. Parbhani in L.A.R.No.212/1988 and L.A.R.No.213/1988, while F.A.No.423/2003 arises out of the judgment and award passed in L.A.R.No.206/1989. These 3 references were filed before the lower court against the acquisition of land, which are adjacent to each other. In all the 3 appeals, only question is involved that is to enhance the compensation granted by the Reference Court. Hence all these appeals to be disposed of by common judgment, by consent. 4 2. Such of the facts as are necessary for the decision in these appeals can be summarized as under : Subject matter of the First Appeal No.515/1994 which arises from L.A.R.No.212/1988 is that the claimants are the owners of the land S.No.255/ABC admeasuring 5 hectres which is situated at village Gangakhed, Tal.Gangakhed, Dist. Parbhani. Notification u/s. 4 was issued on 28/08/1981 and was published in the newspaper on 12/10/1981. Land Acquisition Officer has passed an award on 09/05/1983 wherein compensation was awarded @ Rs.3,000/- per acre for the land acquired. The total amount of compensation was Rs.37,500/-. The amount awarded by the Land Acquisition Officer was accepted under protest, As according to the appellants/claimants, the amount awarded against the acquisition by the Special Land Acquisition Officer is much less than the market price and very meagre, as they have claimed price of the land @ 40,000/- per acre. In the light of this, they have filed land acquisition reference u/s. 18 on 22/06/1983. 3. The claimants in land acquisition reference no.256/3 are the owner/occupiers of the land S.No.256/3 admeasuring about 1 hectre 80R from village Gangakhed, Tal.Gangakhed, Dist.Parbhani. Under the same notification issued u/s. 4, theses lands were acquired. Land Acquisition Officer has granted compensation in the sum of Rs. 13,500/- under the award dated 09/05/1983 which was accepted under protest and for the same reasons, land reference was preferred on 17/06/1983, which was numbered as L.A.R.No.213/1988. 5 4. Claimants in L.A.R.No.206/1989 are the owners/occupiers of land S.No.258 admeasuring 1 hectre 60 R from the same village, same taluka and same district, but the notification u/s. 4 was issued on 25/11/1982, and the award was passed by the Land acquisition Officer on 14/03/1985. Land Acquisition Officer has granted the award @ 3,000/- and the total amount of compensation was Rs. 12,000/- Reference u/s. 18 was preferred on 02/05/1985, which was numbered as 206/1989. 5. Claimants are the occupants of the land which are situated/adjacent to each other, is not under disputed. It is also not under dispute that these lands are acquired by the respondent/State for the construction of Housing Colony for the staff of Mazalgaon Canal Division Camp for the residential purpose. According to the claimants, in all the 3 references, the market value of the land acquired at the time of notification u/s. 4 of The Land Acquisition Act was Rs.40,000/- per acre, i.e. Rs.1,000/- per R. Record and proceeding shows that the respondent/State appeared in the said references and contested it, as according to them, the award passed by the Land Acquisition Officer is of adequate amount and the claim of the claimant claiming compensation @ 40,000/- is exorbitant and that was not the market value of the acquired land at the relevant time. Considering the facts pleaded by the claimants as well as the State, the Trial Court has framed issues including the issue whether the compensation awarded by the Land Acquisition Officer is in- 6 adequate and whether the claimants are entitled for the enhanced compensation. The record shows that the evidence of one Madhukar Kerkar, father of claimants no.1 to 4, father in law of claimant no.5, grand-father of claimants no.6 and 7 was recorded in L.A.R.No. 206/1989 and in L.A.R.No.212/1988. Evidence of Laxman Apparao was recorded in L.A.R.No.213/1988. This evidence is identical with each other. One valuer cum Architect Nagnath Govindrao was examined in the 3 references. In the evidence of Laxman and Madhukar, 3 sale instances each were referred. They were exhibited at Exhs.23, 41 and 42 in L.A.R.No.206/1989 and 212/1988, while the 3 sale instances were exhibited as Exhibit no.23,24, and 33 in L.A.R.No.213/1988. In the evidence of Nagnath Saundankar, the valuer and Architect, report of valuation was tendered. He has also produced 2 maps at Exh.37 and 38 in the respective references. R & P shows that no oral or documentary evidence was led on behalf of the respondent/State. Considering this evidence on record, learned Reference Court has disposed of L.A.R.No.212/1988 and 213/1988 by the common judgment wherein the compensation was enhanced @ Rs.200/- per R while in L.AR.No.206/1989, the compensation was enhanced @ Rs.225/- per R. While enhancing the compensation, the learned Reference Court also passed the order that the claimants are entitled for the benefit in accordance with Law as provided u/s. 23, 23(1A) and 28 of The Land Acquisition Act. 6. Admittedly, the State has not questioned the legality and 7 correctness of these judgments and awards. 7. The original claimants have approached this Court, questioning the correctness of the judgment and award passed by the Reference Court by preferring these appeals, as their claim of enhancement of the compensation @ Rs.1,000/- per R was not accepted by the Reference Court. 8. During the course of submissions across the bar, my attention is drawn towards the evidence given by Madhukar and Laxman on behalf of the respective claimants. My attention is also drawn towards the sale instances quoted in their evidence. The sale instance quoted in the evidence of Madhukar, which are at Exh.23 is in respect of S.No.252 of village Gangakhed and it is dated 25/09/1981 and placed at Exh.41. It was the sale transaction in respect of 12R land for the consideration of Rs.12,000/- The sale instance quoted at Exh.42 is dated 18/07/1981 and in respect of land in S.No.253/2 admeasuring 2R for the consideration of Rs. 3,000/-. The sale instance quoted at Exh.23 is dated 09/02/1981 and is in respect of S.No.252/2, admeasuring 4R for the consideration of Rs.4,000/- My attention is further drawn towards the sale instances quoted in the evidence of Laxman, which sale instances are at Exh.23,24 and 33 in that LAR’s. So far as the document at Exh.33 is concerned, it is the same sale deed which was exhibited at Exh.23 in the earlier group. Sale deed at Exh.23 is in 8 respect of S.No.443 admeasuring 3 acres 15 gunthas for the consideration of Rs.60,000/- The sale instance quoted at Exh.24 is dated 17/01/1983 in respect of S.No.256/B for the consideration of Rs.10,000/- for the area admeasuring about 18R. My attention is further drawn to the evidence of Nagnath Saundankar, the valuer, examined on behalf of the claimants in all the reference, who has produced the report of valuation. It is stated that the lands acquired, which were the subject matter of the reference, were situated within the local limits of the jurisdiction of Gangakhed Municipality. My attention is further drawn towards the fact that the valuer and expert has further stated in his evidence that the lands acquired are near Gangakhed-Latur road also and surrounded by the plots in which there are standing structures. According to me, the land has got N.A. potentiality for the building purpose. Out of the sale instances brought on record, only sale instance is of the year 1983 and the remaining sale instances are within the proximity of the date of notification u/s. 4 of The Land Acquisition Act, hence the price quoted in these sale instances to be accepted as the market value of the land acquired at the material time. Considering the compensation awarded by the Reference Court, it is to be held that the enhanced compensation is also in-adequate. Hence the appellants are entitled for the enhanced compensation as claimed for. He would further urge that if ultimately, the Court come to the conclusion that the lands acquired are not developed lands, then as per the observations of the Apex Court in catena of judgments, 9 25-30 percent market value to be deducted towards the development charges and the appellants be held liable to receive the compensation at least @ Rs.600/- per R and accordingly, the appeals be allowed. 9. While opposing these submissions, learned A.G.P. makes a statement across the bar that the lands (subject matter of the sale deeds), which are quoted, the executant of those documents were not examined before the Reference Court. It is urged that the sale instances quoted and the certified copies of which sale instances were exhibited before the Reference Court, were the sale deeds of the small plots. Considering the area of the plots, the need of the purchaser, need of the seller, and the civic amenities provided to those plots, the value of those plots can not be equated with the market price of the acquired lands, as demanded for. 10. Considering these submissions across the bar, the points require consideration are : 1. Whether the Reference Court has granted adequate compensation against the land acquired, as prayed for ? 2. If the finding to be recorded on point no.2 in the negative, for how much enhancement, the appellants are entitled to ? 11. Finding on point no.1 : Considering the submissions, at this stage, it is necessary to advert to the observations of the Full Bench judgment of this Court in the matter of State of Maharashtra versus 10 Prashram Jagannath Aute, 2007(5) Bom.C.R. 847, wherein in para no.5, certain guidelines are given as to how the evidence laid before the Reference Court to be examined, which read as follows : 5. The analytical examination of the above enunciated principles of law would lead to no other conclusion but each case of determination of market value of the acquired land has to be decided on its own facts, existing statutory guidelines stated in Sections 23 and 24 of the Act and in the backdrop of judicial pronouncements controlling exercise of jurisdiction under Section 18 of the Act. The evidence led by the parties and, particularly the claimants, would have to be scrutinized so as to arrive at a just, fair and adequate compensation. Another facet of this aspect of acquisition law is what kind of methodology the Court would adopt while arriving at a conclusion. Should it adopt capitalization method, multiple method, belting system or evolve any other method which necessarily would have to depend on record before the Court. Location and potential of the land cannot be a question of law; it will ever be a matter of fact. The enunciated principle of law which, de hors the evidence on record, can be applied to every case, is not only improbable but is even impermissible. It can be said that normally an irrigated land would get higher compensation than the unirrigated or jirayat land, but there can be cases where this principle is commonly appears to be true, may not be applicable. For 11 example irrigated agricultural land is located away from the national highway or industrial area but non-irrigated land is located adjacent to the industrial area, which is fully developed and/or is adjacent to the national or State highway. Parties have to lead evidence to show that the lands have greater potential and value, which is higher than the agricultural land. In those circumstances the Court would have to consider the entire matter objectively and may be in all probability the bagayat land may get higher compensation than the agricultural land. Thus it cannot be stated as an universal rule that irrigated agricultural land must always get price higher or the double compensation than the non irrigated agricultural land. 12. Bearing in mind the observations of the Full Bench as referred above, it is necessary to quote the sale instances quoted at Exh.23, 41 and 42 in the group of matters. Perusal of the contents of these 3 sale instances disclose that the measurement or the area of these sale deeds is come under the ambit of small plots. The sale instance at Exh.42 is of the land admeasuring 2R. Sale instance at Exh.23 is of 4R land and at Exh.41 is of 12R land. Secondly, these plots are situated in the limits of Municipality Gangakhed. Out of the sale instances, quoted in connection with L.A.R.No.206/1989, the sale instance at Exh.33 is nothing but the repeatation of the sale instance at Exh.23 in the earlier group. The sale instance at Exh.24 is of the land admeasuring 18R, dated 17/01/1983. This sale deed is 12 subsequent to the notification u/s. 4 of The Land Acquisition Act. Considering the amount of the consideration and the area, the price of this land is shown as ½ of the price than the sale instance at Exh. 23, 41 and 42, quoted earlier. The last sale instance is at Exh.23 in L.A.R.No.206/1989. It is of Survey No.443, admeasuring 3 acres 15 gunthas @ 60,000/-. Contents of the document also shows that this land is situated within the local limits of the jurisdiction of Gangakhed Municipality. Perused all the location of this side from the maps at Exh.37, 38, which shows that it is far away from the land acquired under the Land Acquisition Act. But it is nearer to the local limits of the Gangakhed Municipality, with full of civic amenities and is situated in the developed area. 13. Before commenting further on these sale instances, this Court required to take the note of the fact that on perusal of the oral and documentary evidence recorded before the court below, the fact is clear that even though Madhukar and Laxman were examined on behalf of the claimants and Nagnath was also examined on behalf of the claimants as the expert valuer, who have served for considerable period in the government service as a valuer engineer, but by way of precaution, neither the claimants nor the valuer have produced the best evidence to show that the acquired property is within the local limits of Gangakhed Municipality. Considering this aspect and non production of the material documentary evidence, which can be easily made available to the parties, it is to be held that the area 13 acquired is not within the local limits of the Gangakhed Municipality. 14. Now the second fact required consideration is that in the light of admitted position that the lands under these 3 references were acquired for the construction of the housing colony for the staff of Majalgaon Canal Division Camp. Considering this aspect, as it is held by the Reference Court, this Court has also to held that the land acquired for the housing project is having a non agricultural potentiality. At the same time, it is to be considered that at the time of acquisition of the land, the land was acquired by the acquiring body for not profit making purpose, but for the purpose of the settlement of the staff, of whose services to be utilised in the public interest. 15. At this juncture, further it is necessary to quote the observations of the Apex Court in the matter of Lucknow Development Authority versus Krishna Gopal Lahoti and others, 2008(1) SCC 554 = 2008 AIR (SC) 399. As observed in para no.15 and 16, which read as follows : Where large area is the subject matter of acquisition, rate at which small plots are sold cannot be said to be a safe criteria. Reference in this context may be made to three decisions of this Court in The Collector of Lakhimpur Versus Bhuban Chandra Dutta (AIR 1971 SC 2015), Prithvi Raj Taneja (dead) by Lrs. Versus The State of Madhya 14 Pradesh and Anr. (AIR 1977 SC 1560) and Smt.Kausalya Devi Bogra and others etc. Versus Land Acquisition Officer Aurangabad and another (AIR 1984 SC 892). It cannot, however, be laid down as an absolute proposition that the rates fixed for the small plots cannot be the basis for fixation of the rate. For example, where there is no other material it may in appropriate cases be open to the adjudicating. Court to make comparison of the prices paid for small plots of land. However, in such cases necessary deductions/adjustments have to be made while determining the prices. Further, it is necessary advert to the observations of the Apex Court in the matter of A.Natesam Pillai versus Special Tahsildar, Land Acquisition, Tiruchy, 2011(1) Mh.L.J, page 34, wherein it is observed in para no.18, which reads as follows : The small area of land measuring 1710 Sq.ft was sold for Rs.20,000/- as per Exh.A3 dated 15/07/1992 which works out to a value of Rs.11/- per Sq.ft. A comparison of the two plots, namely, land in Exh.A3 and the acquired land shows that they are not identical. While the land in Exh.A3 may not be an excellent guide it is still a better guide than any other document exhibited on record. The same could be 15 used as a relevant yardstick to assess the just and reasonable compensation in the present case. It is further observed by the Apex Court in the same judgment in para no.20 to 26 of which, it is the substance, Although it is true that the small tract of land cannot be compared in size with the large area of land acquired under the present notification, it is to be concluded that the land in question would definitely fetch a higher price than what is fixed by the High Court. A prospective purchaser would only be too willing to pay for the acquired land having immediate potentiality of being used as a residential site in a prime locale at almost the same, if not, higher rice than the land which is located outside the municipality area. The compensation granted by the High Court does not match the potentiality of the land, even after the discount has been taken into consideration. Even on giving a discount in respect of the acquired land being a large tract as compared to the small portion of land, the rate of Rs.11 would be adequate and just compensation for the same. Now I have to consider the ratio about fixation of the market price of a bigger plot in comparison with the value of the smaller plot in the guidelines as discussed in all the judgments cited supra, and in the light of recent view taken by the apex Court in the matter of Special Land Acquisition Officer and another versus M.K.Rafiq Saheb, 16 2011 AIR SCW 4420, wherein it is observed that, “while determining the price of the land acquired, while considering the comparable sale instances, large tract of land acquired, sale instances of smaller pieces of land, can be relied in certain circumstances. Acres of agricultural land in midst of industrial locality acquired. Determination of compensation on sale instance of small piece of non- agricultural land 2 kms away taking place year before S.4 notification held, proper. Deduction of 50% made as sale instance was of small land enhanced to 60%.” 16. I have examined the record of the sale instances which I have quoted above. Considering that the land acquired, no doubt, was acquired for the construction of the Housing Colony, for the staff of Majalgaon Canal Project, which is a public project, and not for profit making project, the acquired land was not developed land and that land was not provided with any civic amenities. No doubt, it is adjacent to the land mentioned in the 3 instances of the year 1981, but it is under development area and not situated within the municipal limits. At the material time, the sale instance of the large piece of land is at Exh.23 in L.A.R.No.206/89 wherein the land admeausirng 3 acres 15 gunthas i.e. 135 gunthas was sold for the consideration of Rs.60,000/- No doubt, even though it is stated in the evidence of Madhukar and Laxman to which other than denial, there is no challenge, that the lands mentioned in the sale instances 17 are at the distance of about 150 ft. from the land in question, but from the sketches exhibited before the court below at Exh.37 and 38, it reveals that this property is miles away from the land acquired. The price as quoted in that sale instance of Rs.60,000/- for 135 R which comes to Rs.444.44 paisa per R at the relevant time. No doubt, as stated earlier, the contents of these sale instances clearly shows that this property is situated within the municipal limits. It is developed with all the facilities with civic amenities, then considering the ratio quoted in the judgments cited supra and the amount enhanced by the Reference Court, according to me, the price of the land acquired is not adequate. Hence finding on point no.1 is recorded in the negative. 17. Finding on point no.2 : As negative finding is recorded on point no.1, I have to fix the enhanced compensation. As per the available record before me, the compensation required to be fixed @ 300/- per R i.e. enhanced by Rs.100/- per R in F.A.No.515/1994 and F.A.No. 624/1994 and needs to be enhanced by Rs.75/- per R in F.A.No. 423/2003, with the requisite benefits, to which the claimants are entitled under section 23, 23/1-A and 2 with section 28 of The Land Acquisition Act. Accordingly, I have recorded finding on point no.2. In the substance, for the reasons recorded, the appeals are partly allowed with the proportionate costs. (A.V.POTDAR, J.) khs/NOV.2011/fa515-94