ash 1 fa-987.94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELATE JURISDICTION FIRST APPEAL NO.987 OF 1994 The State of Maharashtra .. Appellant Vs Shri Ravindra Balkrishna Vangikar & Ors. .. Respondents ­­ Shri A.R. Patil, AGP and Ms V.S. Mhaispurkar, AGP for the Appellant. Shri S.M. Railkar for Respondent Nos.1 to 3. ­­ CORAM ; A.S. OKA, J DATED : 6TH MAY, 2011 JUDGMENT : . The Appellant State of Maharashtra has taken an exception to the judgment and award dated 7th April, 1992 passed by the Civil Court in a Reference under Section 18 of the Land Acquisition Act, 1894 ( hereinafter referred to as “the said Act”). 2. The acquisition relates to the land at village Isbawi, Taluka _ Pandharpur, District Solapur. A Notification under Section 4 of the said Act was issued on 25th April, 1980. An Award under Section 11 of the said Act was passed on 31st July, 1985. As the Award was not accepted by the Respondents, at their instance, a Reference was made under Section 18 of the said Act. The Reference Court, by the impugned judgment and award, enhanced the market value to Rs.50,000/­ per Hectare. Statutory benefits under Section 23(1­A), 23(2) and 28 of the said Act were granted to the ash 2 fa-987.94 Respondents. 3. The learned AGP appearing for the Appellant has taken the Court through the record of the case and the impugned judgment and award. He pointed out that though the learned Trial Court rejected the evidence adduced by the Respondents in the form of sale instances, only on the basis of the surmises, the market value of Rs.50,000/­ per Hectare has been arrived at. He, therefore, submitted that the reference ought to have been dismissed on the ground that the Respondents have not discharged the burden. 4. Learned counsel appearing for the Respondents pointed out that the evidence was adduced for showing the advantageous location of the village which is adjacent to the city of Pandharpur. Inviting attention of the Court to the evidence on record, he submitted that the acquired land was abutting a public road and it was established that the acquired land had potential for constructing a residential house. He pointed out that the Respondents adduced the evidence in the form of sale instances. Inviting attention of the Court to the findings recorded by the Trial Court, he submitted that though the sale instances were in respect of the transactions which were post notification, the same could not have been kept out of consideration by the learned Judge as the same show the trend of prices. He submitted that if the trend of market value indicated by the said instances is taken into consideration, the market value of Rs.50,000/­ per Hectare awarded by the Trial Court is certainly reasonable and, therefore, no interference is called for with the impugned award. ash 3 fa-987.94 5. I have given careful consideration to the submissions. A claimant in a reference under Section 18 of the said Act is always in a position of the Plaintiff. The Award under Section 11 of the said Act is an offer of the Appropriate Government. The burden is always on the Claimant to establish that the market value offered by the Special Land Acquisition Officer is inadequate. In the present case, market value offered was at the rate of Rs. 36,000/­ per Hectare. 6. The relevant date for determination of the market value is 25th April, 1982. It is true that the Respondents adduced evidence in the form of sale instances. The said comparable sale instances are in the form of sale deeds. They are at 26, 27, 30 and 31. The document at Exhibit 27 is a photo copy of the document Exhibit – 26. The document at Exhibit ­31 is a photocopy of the document at Exhibit­30. The third Respondent stepped into the witness box. He relied upon the agreement of sale of his son’s land executed in favour of a Co­operative Society on 28th January, 1982. However, he stated that in view of the notice of acquisition, he decided to sell the land. In view of this statement, the agreement will not reflect the fair market value. 7. One Jalindar Nanvare, the representative of a Neyojit Balaji Gruha Nirman Sahakari Sanshta was examined who stated that the Society purchased the land bearing Gat No.42/1 admeasuring 1 Hectare and 62 Ares from the Respondent’s son at the price of Rs.1,20,000/­. He proved the sale deed dated 28th January, 1982 at Exhibit – 26. He stated that an Agreement ash 4 fa-987.94 for sale was executed which is not available. He claimed that a sum of Rs. 60,000/­ was paid at the time of execution of the Sale Deed. In the examination­in­chief, the Respondent No.3 himself stated that in view of notice of acquisition, he was to sell the land of his son to the said Society. Therefore, the sale deed may not reflect the fair market value. The other witness examined by the Respondents is one Jawaharlal Gopikisan who deposed that Venkatesh Griha Nirman Sanstha, Pandharpur purchased the land bearing Gat No.47/2 admeasuring 1 Hectare and 60 Ares from the same village on 31st January, 1991 for a consideration of Rs.1,41,000/­. He proved the sale deed at Exhibit – 30. In the cross­examination, he stated that he had not inquired about the prices in the vicinity of the land purchased. In any case, the sale deed has been executed 9 years after the relevant date and the same was rightly kept out of consideration by the Reference Court. 8. In Paragraph 13 of the judgment, the learned Trial Judge has considered the sale instance dated 28th January, 1982 ( Exhibit – 26 ) relied upon by the Respondents. The learned Judge referred to the cross­ examination of the witness Jalinder examined by the Respondents, who admitted that there was no evidence to show that a sum of Rs.60,000/­ was paid at the time of execution of the agreement for sale. The learned Judge observed that there was no payment made before the Sub­Registrar. Moreover, the learned Judge observed that the said transaction was effected by the Respondent no.3 in respect of the land of his son after knowledge of the proposed acquisition. The market value is the one which is offered by a genuine and bonafide buyer. Considering the aforesaid circumstances, the ash 5 fa-987.94 said document has been rightly discarded by the learned Trial Judge and no fault can be found with the said approach. The learned Judge has also recorded a detailed finding about genuineness of the transaction reflected in the Sale Deed dated 31st January, 1991. In any case, transaction reflected from the Sale Deed is of the year 1991 and the witness Jawaharlal examined by the Respondents who was a representative of the Purchaser could not prove that the bargain was made much prior to the execution of the Sale Deed. Thus, both the sale instances relied upon the Respondents are not helpful to them and the same have been rightly discarded. 8. In Paragraph 15 of the judgment, the learned Trial Judge has observed thus:­ “15. .....It is admitted rule that the post facts sale instances should not be solely relied upon for the determination of the compensation or market value. However, they may not be neglected from consideration, at the time of determining market value. Thus, the claim of the applicants that then prevailing market value at the time of notification under section 4 was Rs.40,000/­ per acre cannot be accepted. Considering fact that the Pandharpur Town is developing the prices of the lands are increasing, I say that the market value at the time of notification under section 4 may be held as Rs.50,000/­ per hectare, even taking too liberal view.” 9. It is true that while determining the market value of a land, there is always an element of guess work, but guess work could be made only on the basis of legal evidence available on record. In the present case, there was no legal evidence available on record in as much as the evidence in the ash 6 fa-987.94 form of two sale deeds was rightly rejected. Only by observing that there is a development in Pandharpur Town, price of the land was fixed at Rs.50,000/­ per Hectare. Thus, this is a case where the Respondents did not discharge burden of establishing that the market value offered by the Reference Court under Section 11 of the said Act was inadequate. The finding that market value of the acquired land was Rs.50,000/­ per Hectare is based on no legal evidence. Hence, the Appeal must succeed and I pass the following order. ORDER (a) The impugned judgment and award dated 7th April, 1992 is quashed and set aside and the Land Acquisition Reference No. 45 of 1989 stands dismissed. (b) The Appeal is allowed accordingly with no orders as to costs. ( A.S. OKA, J )