1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL APPEAL NO. 5 OF 2003 The Special Land Acquisition Officer (I), Jalgaon District Jalgaon ...Appellant Versus 1 Dilip Rajaram Nemade, Age 24 years, Occ. Agriculture, R/o. Ram Peth, Jalgaon 2 Namdeo Rajaram Nemade, Age 26 years,Occ. Service & Agri. R/o. Ram Peth Jalgaon District Jalgaon (Both are legal heirs of late Laxman Motiram Nemade, who died in the year 1986) ...Respondents ..... Shri S. P. Daund, A.G.P. for the appellant Shri S.P. Shah h/f Mr. P. V. Barde, advocate for respondents ..... CORAM: S.B. DESHMUKH & S.S. SHINDE, JJ. JUDGMENT RESERVED ON : 22ND JUNE, 2009. JUDGMENT PRONOUNCED ON : 1ST JULY, 2009. 2 ORAL JUDGMENT (PER SHINDE, J.) 1 This first appeal is filed challenging the judgment and award dated 2.2.2000 passed by the learned Civil Judge, Senior Division, Jalgaon in Land Acquisition Reference No. 366 of 1990. 2 The land of respondents from village Khedi Tq. Jalgaon came to be acquired for development of Jalgaon Industrial area by M.I.D.C. The S.L.A.O. Jalgaon issued notification under Section 32(2) of the M.I.D.C. Act 1962 and final notification was issued and published on 22.8.1985. In response to the notice, the claimants respondents herein claimed Rs.1,50,000/- per acre by way of compensation. The Collector, rejected the claim of the respondents. The respondents received compensation awarded to them under protest. On issuing notice under Section 12 of the Land Acquisition Act, the Government took possession of the entire land in question. The present respondents filed Reference contending that the 3 S.L.A.O. ought to have valued the land on the basis of the N.A. potentiality as the same is quite close to Jalgaon city and also adjacent to the already developed industrial area since before 1980. It was further stated that the land is situated adjacent to the National Highway No.6 and all facilities which are necessary for residential locality are available nearby the land in question. It was further case of the respondents that the SLAO has not made proper and reasonable award. The respondents have not collected the relevant and useful evidence in order to establish proper and reasonable value of the land under acquisition. The respondents, therefore, claimed for enhancement of compensation granted by the SLAO including the solatium, component and interest as per the Land Acquisition Act and claimed the price of the land at higher rate as described. The State Government resisted the claim of the claimants by filing written statement and leading evidence. 3 Considering the rival contention of both the parties necessary issues were framed by the Court below. The court came to the conclusion that the claimants-respondents had accepted the amount of 4 compensation under protest. It is further held that the market price of the land determined by the Special Land Acquisition Officer is inadequate. The court further held that the price of the land on the date of notification under Section 4 of the land Acquisition Act is Rs.2.00 Lacs for Jirayat land and Rs.3.00 lacs for irrigated land. 4 Being aggrieved by the judgment and award passed by the learned C.J.S.D. Jalgaon in L.A.R. No. 366 of 1990, this first appeal is filed by the State. 5. Learned AGP appearing for the State, has invited our attention to the deposition of the claimant as well as the depositions of the witnesses on behalf of the appellants. He submitted that the award passed by the Special Land Acquisition Officer is after taking into consideration all factors and therefore, any interference by the Reference Court was unwarranted. It is further submitted that the sale deed which is relied upon by the Reference Court is not from village Khedi. It is further submitted that the Reference Court awarded exorbitant amount of compensation. The learned AGP has placed reliance on the depositions of Mr. Deelip Hiraman Patil, who was working as Talathi and another witness examined on behalf of the appellant. The sum and substance of 5 argument of the AGP is that the award passed by the SLAO was proper and no interference whatsoever was warranted by the Reference court. 6 Per contra, the counsel appearing for the respondents claimants invited our attention to the judgment passed by the Reference Court and more particularly para 5, 6 and 7 and has submitted that the trial court has properly appreciated the evidence brought on record, considered the sale instance cited by the claimants and also other factors and came to correct conclusion that the respondent claimants are entitled for enhanced compensation. 7 We have heard learned counsel appearing for the respective parties at great length and also perused the original record received from the lower court and we are of the considered view that the findings recorded by the court below are inconsonance with the evidence brought on record. The trial court has given adequate and sufficient reasons to pass impugned judgment and award. 8 On perusal of the statements of the claimants-respondents, it is abundantly clear that the assertion for enhancement of compensation is based upon the concrete sale instance and other evidence adduced by 6 him. The claimant has stated in his statement that National Highway No.6 is passing by the acquired land. The village Khedi is also by the side of National Highway No.6. The land acquired is within the limits of Jalgaon Municipal Council. The distance between the acquired land and Jalgaon City is about 1.5 kilometers. Acquired land is situated at the distance of 200 ft. from Jalgaon. The village Khedi is at North while acquired land is at south of National Highway No.6. The quarters of irrigation department are constructed in village Khedi. There is also godown of B. and C. department in village Khedi. 9 In support of his case, the claimant examined one Mr. Pralhad Dharma Patil. In his deposition, he stated that he owned the land bearing survey No. 133/1/3 admeasuring 50 R. He sold the said land on 14.9.1981 for the value of Rs.1,60,000/-. He further stated that there is Nala between Khedi and his land in sale instance of Jalgaon. His land is adjacent to National Highway No.6. He knew the claimant Deelip Rajaram Nemade. The acquired lands were after two lands after Nala going between village Khedi and his land. The land of claimant is also on National Highway No.6. At the time of acquisition, there was one petrol pump and hotel by the side of land of the claimant. All these properties were existing prior to the date of acquisition. He further stated that there 7 was construction around village Khedi. Old M.I.D.C. situated prior to year 1980. At the time of acquisition, value of acquired land was Rs.1,50,000/- to Rs.2,00,000/- per acre. He has stated that certified copy shown to him is the same on which he has signed as vendor. The said certified copy is sale deed of his land and its contents are correct and he has received full consideration of the sale. On careful perusal of the cross examination of claimant as well as his witness, nothing has been brought out by the appellants to disbelieve their evidence. 10 The appellant herein examined two witnesses in support of its case viz. Deelip Hiraman Patil, who was working as Talathi. His deposition is at Exh. 20. Another witness viz. Raju Manik Gaikwad is also examined, whose deposition is at Exh.35. Witness No.1 Deelip has stated in his examination in chief that he cannot state the distance between Gavthan of village Khedi (Bk) and the acquired land. Acquired land is by the side of National Highway running between Mumbai- Nagpur. He cannot state the distance between the land in sale instance and the acquired land. He specifically stated that the limits of Jalgaon and Khedi have same boundary. They are adjacent to each other. There 8 are 4 to 5 lands between acquired lands and the land in sale instance. He further stated that the land under acquisition was Bagayat . There is well in Gat No. 43 and the land was irrigated seasonally through the well water. He again reiterated that the land was irrigated throughout the year because two crops were cultivated in a year. Another witness viz. Raju Manik has nothing specifically stated to support the case of the appellant. 11 We have carefully perused the other documents on record including the award. The award is at Exh.21, wherein the S.L.A.O. has stated that the land in respect of which the compensation is payable are situated adjacent to Jalgaon Ajanta road and Surat-Dhuliya-Edlabad Road. It is also stated that old MIDC is situated in the revenue limit of village Mehrun, Tq. Jalgaon. The land under acquisition is not within the limit of Jalgaon Municipal Council but is at a distance of about 2 to 3 kilometers from old MIDC area. The land under acquisition is surrounded by industrial area and N.A. activities for residential building, plots etc. are in progress. New APMC yard is established in old MIDC area. It is further stated that there is general trend of development activities towards the location of industrial activities beside of market yard and 9 National Highway of both sides. 12 The lower court has considered the sale instance cited before him and after proper appreciation of all facts and evidence brought on record, came to the conclusion that the acquired land of the respondent was seasonal Bagayat and therefore, the value of acquired seasonal Bagayat land could be Rs.3.00 lacs per acre. 13 On the independent scrutiny of the evidence of the witnesses of the appellant, we have no doubt in our mind that the acquired land is situated near National Highway No.6. Even according to the witness viz. Deelip Hiraman Patil examined by the appellant the land in sale instance is after 4 to 5 lands from the land mentioned in the sale instance. The witness has also admitted that there is petrol pump in land bearing Gat No.48, while acquired land is from Gat No.43. The land under acquisition is after two lands from Gavthan of village Khedi. Boundary of village Khedi and Jalgaon is same. He has also admitted in his cross examination that the land in sale instance is on the boundary of Jalgaon city. This witness has also admitted that the entire land was having black cotton soil and two crops were cultivated in a year by the claimants. He has stated that these facts were brought on record by going through the 10 record of rights. The land under acquisition was black cotton soil. The claimants have also placed on record the map at Exh.34 of village Khedi and Jalgaon showing the situation of acquired land and the National High Way No.6. It is clear that the land acquired and the land in the sale instance are by the side of National Highway No.6. Apart from this the SLAO himself has stated that the land under acquisition is surrounded by the industrial estate and NA activities for residential buildings, plots etc. are in progress. 14 On careful perusal of entire documents brought on record and the findings recorded by the court below, we are of the considered opinion that the first appeal is devoid of any merits. The Reference court, after considering the depositions of witnesses, statement of SLAO, contents of the award and the other factors including N.A. potentiality and after hearing both sides, has properly appreciated the evidence brought on record and by impugned judgment and award, has allowed Reference filed by the respondent-claimant. It is not necessary to go into the details of the findings recorded by the lower court, since we are in full agreement with the reasonings recorded by the Reference Court while allowing the Reference filed by the respondent-claimant. 11 15 In the result, the first appeal filed by the appellant-State is hereby dismissed, no cost. *****