-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION FIRST FIRST FIRST APPEAL NO.773 OF 1991 APPEAL NO.773 OF 1991 APPEAL NO.773 OF 1991 1.The State of Maharashtra 2.The Special Land Acquisition Officer No.8 ...Appellants vs. Vasant Bapu More ...Respondent Mr.S.N.Gawade A.G.P. for State Mr.N.J.Patil for the Respondent CORAM: CORAM: CORAM: A.S.OKA, J. A.S.OKA, J. A.S.OKA, J. DATE DATE DATE : FEBRUARY 14, 2008 : FEBRUARY 14, 2008 : FEBRUARY 14, 2008 ORAL JUDGMENT: ORAL JUDGMENT: ORAL JUDGMENT: 1. I have heard the submissions of the learned Advocates for the parties. The Appellants have taken an exception to the Judgment and Award dated 9th January 1981 passed by the II Additional District Judge, Kolhapur. The said Award has been made in a reference under section 18 of the Land Acquisition Act,1894 (hereinafter referred to as "the said Act"). The reference was made at the instance of the Respondent-claimant. The land subject matter of the acquisition is situated at Village Kumbhalhal, Taluka Gadhinglaj, District Kolhapur bearing Gat No.202 admeausuring 1.24 hectares. The notification under section 4 of the said Act issued on 7th August 1986. The Award under section 11 of the said Act was made on 26th August 1988. As the award was not accepted by the Respondent-claimant, at his instance, a reference under section 18 of the said Act was made. The Land Acquisition -2- Officer awarded the compensation at the market value of Rs.8000/- per hectare. The respondent claimed market value at the rate of Rs.40,000/- per acre. The respondent also claimed compensation on account of damage caused at the time of taking possession of the acquired land due to severance of the acquired land from his other lands. By the impugned Judgment and Award, the market value has been fixed at the rate of Rs.35,000/- per hectare. Compensation of Rs.10,000/- has been awarded on account of severance of his other land from the acquired land. In addition to that, statutory benefits under sections 23(1-A), 23(2) and 28 of the said Act were granted by the reference Court. 2. The submission of the learned A.G.P. for the State of Maharashtra is that no evidence was adduced by the Respondent as regards monetary loss caused to him due to severance of his other lands. He invited my attention to the evidence adduced by the Respondent and submitted that the sale instances at Exh.29 and 36 were not of comparable lands. He submitted that without there being any legal evidence of the market value on the relevant date, the learned trial Judge has granted enhancement. 3. The learned Advocate for the Respondent supported the impugned Award. He invited my attention to the finding recorded by the Reference Court in paragraph 13 of its -3- Judgment and submitted that the evidence on record shows that the Respondent has suffered loss on account of severance. He submitted that a minimum amount of Rs.10,000/-has been awarded on the same count by the Reference Court which needs no interference. He invited my attention to various sale instances produced by the Respondent and submitted that in fact the market value on the relevant date must be much more than Rs.25,000/- per hectare. 4. I have considered the submissions. I have perused the record. The Respondent examined six witnesses including himself. The Appellants examined the Special Land Acquisition Officer as their witness. The Respondent has described the location of his land. He described the nature and quantity of crop taken by him on the acquired land. He deposed that the colour of the soil of the acquired land was black and therefore, the acquired land was very a fertile land. He stated that the acquired land was approachable by a cart road. 5. Reliance has been placed by the Respondent on several sale instances by producing certified copies of the Index-II. The sale instance at Exh.18 is in respect of the land bearing Gat No.241 of the same village which is dated 21st June 1985. As pointed out earlier, the relevant date in this case is 7th August 1986. This is one sale instance which is considered by the learned trial Judge to be comparable. The second sale -4- instance at Exh.25 is Index-II of the sale deed dated 17th February 1987 of a land bearing Gat No.44-A from the same village. The vendor has been examined as a witness. Though it is a post notification sale, since it was executed in the close proximity of the relevant date in this case, the learned trial Judge has taken the same as evidence of the market value of a comparable land. Another sale instance at Exh.30 is proved by examining one Basgonda Patil who was the vendor who effected sale of land bearing Gat 124 of the same village. The evidence of the said vendor shows that on the land which is subject matter of the sale he was taking paddy, ground nuts, onion and Jawar crops. There is a sale instance of land bearing Gat No.102 at Exh.33 which is discarded by the learned trial Judge. Another sale instance which is held to be relevant is at Exh.36 which is in respect of the land from the same village admeasuring about 2 acres. The vendor has been examined as a witness. Since, the said transaction is of 21st March 1986, the same has been considered to be relevant by the learned trial Judge. The last sale instance is of document at Exh.39 which is Index - II of the sale deed dated 22nd July 1985 in respect of the land bearing Gat No.282-B from the same village. The purchaser under the said sale instance has been examined as a witness. The learned Trial Judge considered the market value reflected from the sale instances at 18,25,30,36 and 39 which was in the range of Rs.45,000/- per hectare to Rs.95,000/- per hectare. All the said sale instances are very -5- relevant. 6. The learned trial Judge has considered certain the sale instances which are referred to in the award under section 11 of the said Act. The said sale instances are not produced and proved before the court. Therefore, the same could not have been considered by the learned Judge. However, the fact remains that considering the comparable sale instances, market value of the acquired land on the relevant date was found to be Rs.35,000/- per hectare. 7. The Apex Court has held that in the matter of computing the market value under section 23 of the said Act, some guess work is inevitable. On the basis of the aforesaid five sale instances which were duly proved before the Court by examining the relevant witnesses, the learned trial Judge has taken the market value only at the rate of Rs.35,000/- per hectare. By no stretch of imagination, the said market value can be said to be excessive. It is difficult to find fault with the said finding of the learned Judge. The market value awarded is certainly reasonable. 8. The Respondent has claimed compensation under the heading " thirdly" under section 23 of the said Act. The relevant part of the section 23 reads thus : -6- "23. "23. "23. Matters Matters Matters to be considered in determining compensation - to be considered in determining compensation - to be considered in determining compensation - (1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration - firstly, the market value of the land at the date of the publication of the [notification under section 4, sub section (1)] secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector’s taking possession thereof; thirdly, the damage (if any), sustained by the person interested, at the time of the Collector’s taking possession of the land, by reason of severing such land from his other land..." Therefore, the claimant has to prove the extent of damage sustained by him by reason of severance of acquired land from other lands. In the present case, out of total area of 2.80 hectares, the area of 1.24 hectares was acquired and remaining area of 1.56 hectares continued with the Respondent-claimant. The only reason given by the learned Judge for granting -7- compensation of Rs.10,000/- on this count is in the paragraph 13 which reads thus : "13.. No doubt it is a permanent loss to the Applicant before of severance and he must have suffered some loss and damages since small piece of land remained with him because of acquisition. The Land Acquisition Officer never awarded the compensation for severance and thus committed an error in awarding the compensation. However, considering the nature of severance and the compulsory nature of the acquisition, I hold that Rs.10,000/- is the sufficient compensation to meet the loss, damages and affects of severance." 9. Perusal of the evidence of the respondent-claimant and his witnesses shows that none of them have stated the exact nature of damage or loss suffered by the Respondent on account of severance. There is absolutely no evidence in that behalf. By merely showing that only a part of the larger holding of the claimant is acquired, the claimant will not get compensation unless the evidence is led to prove the nature of damage and the basis for quantification of the loss. It is well settled proposition of law that in a reference under section 18 of the said Act, initial burden is always on the claimant and in fact the claimant is always in a position of a plaintiff. In the present case, there is absolutely no evidence to justify the grant of any compensation on the said -8- count. Therefore, to that extent, the impugned award will have to be modified. 10. Hence, I pass the following order : i) Impugned Judgment and Award dated 9th January 1991 is modified. The market value of at the rate of Rs.35,000/- per sq. hectare of the acquired land as well as grant of statutory benefits is confirmed. That part of the Award by which the compensation in the sum of Rs.10,000/- is awarded is quashed and set aside. Consequently, statutory benefits granted on sum of Rs.10,000/- are also set aside. ii) The trial court will pass a modified Award on the basis of the Judgment and fix the total amount of compensation payable by the Appellants to the Respondent. iii) The Appeal is partly allowed in above terms with no order as to costs. iv) However, it is clarified that the Respondent will be entitled to proportionate costs of the reference. JUDGE JUDGE JUDGE -9- ‘‘‘