1 F. A. No. 280/1994 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 280 OF 1994 Anisuddin S/o Syed Muniruddin Since died his L.Rs.: 1. Shamshunissa W/o Anisuddin, Age : 42 Years, Occu. : Household, R/o Kallam. 2. Salimuddin Anisuddin, Age : 19 years, Occu. : Student, R/o Kallam. 3. Kallimuddin Anisuddin, Age : 35 Years, Major. 4. Alimuddin Anisuddin, Age : 32 Years, Major, 5. Naimuddin S/o Anisuddin, Age : 36 Years, Minor, 6. Shaminunnissa Anisuddin, Age : 28 Years, Minor All R/o Kallam, Tq. Kallam, District Osmanabad. .. Appellants Versus The State of Maharashtra, through the Collector, Osmanabad. .. Respondent 2 F. A. No. 280/1994 Shri V. C. Solshe, Advocate h/f Shri C. G. Solshe, Advocate for Appellants. Shri K. M. Suryawanshi, A.G.P. for Respondents/State. CORAM : K. K. TATED, J. DATE : 15TH DECEMBER, 2010. ORAL JUDGMENT : . Heard learned counsel for the parties. The present appeal is preferred by the original claimant against the judgment and award dated 27.06.1986 passed by the Civil Judge Senior Division, Osmanabad in Land Acquisition Reference No. 32/1982. 2. A few facts of the matter are as under : The Special Land Acquisition Officer issued notification U/Sec. 4 of the Land Acquisition Act on 21st August, 1978 for acquiring appellant's/original claimant's house property bearing No. 97/10 for Manjra project. Thereafter, Special Land Acquisition Officer issued notification U/Sec. 6 dated 05th March, 1978. After following due process of law the Special Land Acquisition Officer declared award dated 07.07.1979 and awarded compensation in respect of acquired property to the tune of Rs. 5851/- along with statutory benefit as they entitled. 3. Being aggrieved by the award passed by the Special Land Acquisition Officer, the appellant preferred reference U/Sec. 18 of 3 F. A. No. 280/1994 the Land Acquisition Act claiming enhanced compensation in respect of acquired property of Rs. 20,000/-. The said reference was dismissed by the Reference Court on 27.06.1986 holding that appellant failed to reply notice U/Sec. 9(3) of the said Act. 4. Learned counsel appearing on behalf of appellant submits that in their reference application U/Sec. 18, the appellant specifically made a statement that notice U/Sec. 9(3) was not served on them and therefore, there is no question of claiming any compensation. Learned counsel appearing on behalf of appellant further submits that the Reference Court erred in coming to the conclusion that the burden to prove the service of notice is on claimant. He submits that, the respondent/Special Land Acquisition Officer failed to produce a single document on record to show that notice U/Sec. 9(3) was served on the appellant. In view of these submission, learned counsel appearing on behalf of appellant state that the judgment and award passed by the learned Reference Court is liable to be quashed and set aside. 5. On the other hand, learned Assistant Government Pleader appearing on behalf of respondent vehemently opposed the appeal. He submits that it is specifically stated in award dated 07th July, 1979 that Special Land Acquisition Officer duly served notice U/Sec. 9(3) of the said Act on appellant. He further point 4 F. A. No. 280/1994 out that pursuant to the said notice U/Sec. 9(3) of the said Act, appellant filed his claim before the Land Acquisition Officer and claimed compensation in respect of acquired property Rs. 15,000/-. He further submits that, considering the claim petition of appellant, Special Land Acquisition Officer awarded a sum of Rs. 5,851/- towards the acquired property. 6. I have gone through the record and proceedings of the present matter. It is admitted fact that claimant pursuant to the notice U/Sec. 9(3) claimed a sum of Rs. 15,000/- in respect of acquired property. During the course of argument, these facts are not disputed by the learned counsel appearing on behalf of appellant also. He submits that if the claimant claimed sum of Rs. 15,000/- in respect of acquired property pursuant to the notice U/Sec. 9(3) of the Act, then the findings given by the Reference Court that the reference application filed by the appellant is barred U/Sec. 25(2) of the unamended section is contrary to the well established law. He submits that the Reference Court erred in coming to the conclusion that burden of proving service of notice U/Sec. 9(3) is on claimant. He submits that no one entered into witness box on behalf of respondent to prove that the notice U/Sec. 9(3) was duly served on the appellant. He submits that burden of proving service of notice U/Sec. 9 is on the Land Acquisition Officer. In support of his 5 F. A. No. 280/1994 contention he relies on judgment in the matter of Special Land Acquisition Officer Vs. Sanagouda Paragouda Patil reported in AIR 1974 Karnataka 74. Head note 'B' of the said judgment reads as under : "B. Land Acquisition Act (1894). Section 25(2) and 9 - Bar under S. 25(2) when applicable - Requirements of valid notice under Section 9 must be complied with." " The burden of proving that a valid notice complying with the requirements of Section 9 has been served on the claimant is on the Land Acquisition Officer. Where it has not been established that the notice served on the claimant is one which complied with the requirements of a valid notice under Section 9, the bar under Section 25(2) is not applicable." 7. Admittedly, in the present case no one entered into witness box on behalf of respondent/land acquisition officer. Therefore, the finding of Reference Court on issue No. 3 and 4 is liable to be set aside. The issue No. 3 and 4 reads as under : 3-) Whether each of the claimant was duly served with notice U/s 9 of the L. A. Act ? 4-) Whether each of the claimant is disentitled to receive enhanced compensation as per Section 25(2) of the L. A. Act ? 6 F. A. No. 280/1994 8. Now second question arises in the present case is about the compensation payable to the appellant/original claimant. The appellant pursuant to the notice U/Sec. 9(3) claimed a sum of Rs. 15,000/- in respect of his acquired property. These facts are stated by the Land Acquisition Officer in his award dated 07th July 1979. The claimant to prove the market value of acquired property examined their expert Shivrudra Dannappa Kevalram at Exhibit 54 P. W. 17. In his evidence, he has stated that he visited spot for valuation. He took the measurement of the house and prepared plan under measurement sheet. He further stated in his evidence that he assessed the valuation taking into consideration D.S.R. rates of 1978-79, local rates and the labour position. He further stated that at the time of preparing valuation report he deducted depreciation charges also. He submitted valuation report at Exhibit 54. As per expert report valuation of house property No. 97 comes to Rs. 50,686/-. Learned counsel appearing on behalf of appellant further submits that they produced sale deed at Exhibit 80 dated 24.07.1974 in respect of house property admeasuring 26 x 13 of Rs. 8,951/-, Exhibit 81 dated 02.02.1978 of house property admeasuring 112 x 82 for Rs. 40,101/- and Exhibit 82 dated 19th October, 1979 in respect of house property admeasuring 50 x 12 1/2 feet of Rs. 10,000/-. He submits that considering these documents appellant/claimant is entitled compensation of 7 F. A. No. 280/1994 acquired property of more than Rs. 15,000/-. 9. Thought, the appellant proved that he is entitled compensation in respect of acquired property for more than the amount which they claimed pursuant to the notice U/Sec. 9(3) that cannot be granted in view of Sec. 25 of the Land Acquisition Act (Before amendment). Unamended Section 25 reads as under : "25. Rules as to amount of compensation.-- (1) When the applicant has made a claim to compensation, pursuant to any notice given under section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under section 11. (2) When the applicant has refused to make such claim or has omitted without sufficient reason to make such claim, the amount warded by the Court shall in no case exceed the amount awarded by the Collector. (3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by the Collector. " 10. Considering the sale deeds at Exhibit 80, 81 and 82 and expert's report at Exhibit 54, I hold that the appellants proved that they are entitled for enhanced compensation in respect of acquired property. They claimed a sum of Rs. 15,000/- pursuant 8 F. A. No. 280/1994 to the notice U/Sec. 9(3). Land Acquisition Officer awarded a sum of Rs. 5,851/-. They are entitled for remaining amount of Rs. 9,149/- as additional compensation towards acquired property. It is needless to state that the appellants are also entitled for additional benefit i. e. interest, solatium, etc. as granted by the Land Acquisition Officer in award dated 07th July 1979. 11. The appeal is partly allowed. The judgment and award passed by the Reference Court is set aside. 12. The claimants/appellants are entitled a sum of Rs. 9,149/-, additional compensation in respect of acquired property along with statutory benefit as awarded by Special Land Acquisition Officer in award dated 07th July, 1979. 13. No order as to costs. [K. K. TATED, J.] bsb/Dec. 10