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.1300 OF 1996 APPEAL NO.1300 OF 1996 APPEAL NO.1300 OF 1996 ALONGWITH ALONGWITH ALONGWITH FIRST FIRST FIRST APPEAL NO.1348 OF 1996 APPEAL NO.1348 OF 1996 APPEAL NO.1348 OF 1996 Annasaheb Shankar Desai ...Appellant (In both the Appeals) Versus The Collector, Sangli, District Sangli. ...Respondent (In both the Appeals) ALONGWITH ALONGWITH ALONGWITH FIRST FIRST FIRST APPEAL NO.1262 OF 1996 APPEAL NO.1262 OF 1996 APPEAL NO.1262 OF 1996 Maruti Krishna Mali ...Appellant Versus The Collector, Sangli, District Sangli. ...Respondent --- Shri T.S.Ingale for the Appellant in all three Appeals. Shri S.N.Gawade, A.G.P for the Respondent in all three Appeals. --- CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATE DATE DATE ON WHICH JUDGMENT ON WHICH JUDGMENT ON WHICH JUDGMENT IS IS IS RESERVED. RESERVED. RESERVED. : 17th JANUARY, 2008. 17th JANUARY, 2008. 17th JANUARY, 2008. DATE DATE DATE ON WHICH JUDGMENT ON WHICH JUDGMENT ON WHICH JUDGMENT IS IS IS PRONOUNCED. PRONOUNCED. PRONOUNCED. : 07TH March, 2008. 07TH March, 2008. 07TH March, 2008. JUDGMENT: JUDGMENT: JUDGMENT: 1. These three appeals can be conveniently disposed of by a common judgment. The appellants take exception to judgments and awards dated 29th December, 1994 passed : 2 : 2 : 2 : by the learned 2nd Joint Civil Judge, Senior Division at Sangli on references under section 18 of the Land Acquisition Act, 1894 (hereinafter referred to as the said Act) made at the instance of appellants in these appeals. The appellant in First Appeal No.1300 of 1996 and 1348 of 1996 is the same. The acquisition relates to the lands at village Narwad, Taluka Miraj, District Sangli. The notification under section 4 of the said Act in all the three cases is the same which was issued on 16th September, 1989 notifying the lands for acquisition for the public purpose of Krishna-Koyana Lift Irrigation Scheme. The award under section 11 was made on 31st March, 1990. The compensation at the rate of Rs.13,000/- per hectare was offered to the appellants. As the appellants did not accept the award, the references were made at their instance under section 18 of the said Act of 1894. 2. The land subject matter of First Appeal No.1300 of 1996 admeasures 99 Ares out of Gat No.311. By the impugned judgment and award, market value has been awarded at the rate of Rs.31,500/- per hectare. The learned Judge held that the said land was a jirayat land of good quality. The claim made by the appellant in the reference was at the rate of Rs.85,000/- per acre. The land subject matter of First Appeal No.1348 of 1996 is : 3 : 3 : 3 : Gat No.286 admeasuring 29 Ares. In the said case, the claim in reference was at the rate of Rs.60,000/- per hectare. The reference Court has fixed the market value at the rate of Rs.47,250/- per hectare. The learned Judge held that this land was a seasonally irrigated land. The land subject matter of First Appeal NO.1262 of 1996 admeasures 87 Ares out of Gat No.219. The claim in reference in the said case was at the rate of Rs.80,000/- per acre. The reference Court fixed the market value at the rate of Rs.47,250/- per hectare. This land was also held to be a seasonally irrigated land. In all the three cases, apart from granting enhancement in market value as aforesaid, the reference Court granted statutory benefits under section 23(1-A), 23(2) and 28 of the said Act. 3. The learned advocate for the appellants has taken me through exhibited documents on record as well as oral evidence of the witnesses examined by the appellants. The submission of the learned advocate for the appellant in First Appeal No.1300 of 1999 is that there was no basis for holding that the acquired land subject matter of the said appeal was a jirayat land. He submitted that there was an evidence of comparable sale instances which showed that the market value of the acquired land was more than Rs.34,000/- per acre. He : 4 : 4 : 4 : submitted that no distinction could have been made between price of a jirayat and bagayat land considering the fact that the acquired land had non-agricultural potentiality. The learned advocate in support of First Appeal Nos.1348 of 1996 and 1262 of 1996 submitted that the sale instances on record showed that market value of similar lands was more than Rs.47,250/- per hectare. He criticised the learned trial Judge for taking average price reflected from different sale instances produced by the appellants. He place reliance on a decision of Apex Court in the case of State of Punjab and another Vs. Hansraj (Dead) by legal representatives and others (1994 (5) Supreme Court Cases Page 734). 4. The learned Assistant Government Pleader supported the impugned judgments and awards. His submission is that the trial Court was justified in awarding market value at a different rate for jirayat land. It is submitted that while arriving at market value of the acquired land as required by section 23 of the said Act of 1947, there is bound to be an element of a guess work and therefore merely because the trial Court has purported to take average of the market value reflected from several sale instances, the market value fixed by the trial Court cannot be faulted with. The submission of the learned A.G.P is that the market value : 5 : 5 : 5 : fixed by the trial Court is reasonable which calls for no interference. 5. I have carefully considered the submissions. It must be noted here that while fixing the market value of the acquired lands in these three cases, the Land Acquisition Officer divided the acquired lands into different categories only on the basis of the land assessment. Depending upon the land assessment, market value was fixed by him. For a land having lowest assessment in the group, market value at the rate of Rs.11,000/- per hectare was fixed and in the lands having highest assessment, the market value at the rate of Rs.16,000/- per hectare was fixed. 6. It will be necessary to refer to the oral evidence. The appellant in First Appeal No.1300 of 1996 and First Appeal No.1348 of 1996 stepped into witness box. His evidence has been separately recorded in the two cases. While referring to the acquired land bearing Gat No.311 which is the subject matter of First Appeal No.1300 of 1996, the appellant stated that the said land was fertile. He stated that he was holding land bearing Gat No.286 which is adjacent to the acquired land and from the said adjacent land, he used to draw well water for irrigating the acquired land. He placed on record a : 6 : 6 : 6 : map at Exhibit 29 showing that the land bearing Gat No.286 was adjacent to the acquired land. He stated that he was taking crop of jawar, wheat, groundnut etc. He stated that only a small portion of the acquired land was fallow which is infact a road. He described the income received from the acquired land. 7. In paragraph No.3 of his evidence, he has referred to the fact that he had constructed two bunds on the acquired land by spending a sum of Rs.2,500/-. Thereafter he has referred to the sale instances produced by him. The relevant part of his examination-in-chief reads thus: "I have produced the certified copies of the sale deeds alongwith Exhibit 23/4 to 8. They are at Exhibits 30 to 34. I know the land bearing Gat No.1633 shown in the sale deed. The said land is sold at the rate of Rs.47.619/- per acre. I know Gat No.178 shown in the sale deed Exh.31. The said land is sold at the rate of Rs.34,567/- per acre. The land Gat No.102 shown in Exh.32 was sold at the rate of Rs.29,925/- per acre. I know Gat No.103 mentioned in the sale deed exh.33. It was sold at the rate of Rs.34,343/- per acre. : 7 : 7 : 7 : All the above referred lands are at the distance of 500 to 1500 ft from my land. The above referred lands are jirayat lands. I know these lands because some of them are on my way to my land and some are nearby my land. I have produced the 7 X 12 extract of the land shown in the above referred sale deeds and they are at Exh 35 to 41". 8. In the cross-examination he admitted that four gunthas of acquired land was fallow. There is hardly any cross-examination on the sale instances which are referred to in examination-in-chief. In the examination-in-chief reliance has been placed on sale instances at Exhibit 30 to Exhibit 34. As noted earlier the relevant date in the present case is 16th September, 1989. The first sale instance at Exhibit 30 is of a jirayat land admeasuring 1 hectare and 5 Are which was sold on 16th June, 1989 at the rate of Rs.47,619/- per acre. This sale instance is of a land situated in the adjoining village. Therefore, the same cannot be considered especially when sale instances of the lands from the same village are available. The sale instance at Exhibit 31 is of a sale of land bearing Gat No.178 of village Narwad admeasuring 1 hectare and 62 Ares dated 17th May, 1989. Exhibit 32 is a sale instance of : 8 : 8 : 8 : November, 1984 and therefore the same has to be discarded. In so far as Exhibit 31 is concerned, the market value is Rs.34,567/- per acre. The Exhibit 33 is a sale instance dated 03rd May, 1989 in respect of a land bearing Gat No.103 of village Narwad admeasuring 98 Ares which was sold at the rate of Rs.34,343/- per acre. The Exhibit 34 is a sale instance of a land admeasuring 1 Hectare 98 Ares out of Gat No.103 of village Narwad sold on 07th April, 1989 at the rate of Rs.34,343/-. Considering the dates of sale, the sale instances at Exhibits 31, 33 and 34 are in a reasonable proximity of the relevant date. The sale instances are in respect of lands in the same village. In examination-in-chief, the appellant has stated that the lands subject matter of the said sale instances are at the distance of 500 to 1500 feet from his land. He has stated that he knows the said lands as the same are near his land. He categorically stated that the said lands subject matter of Exhibits 31, 33 and 34 were jirayat lands. There is hardly any cross-examination of the said witnesses of this aspect. Therefore, the aforesaid sale instances are certainly relevant for determining market value of the acquired land. 9. Paragraph No.2 of the deposition discloses that on the acquired land bearing Gat No.311 there was no : 9 : 9 : 9 : well and he was drawing the water from the adjoining land bearing Gat No.286. In the examination-in-chief, the appellant has stated that Krishna river is at a distance of about 4 Km from the acquired lands. From his cross-examination it appears to be an accepted position that the acquired land was a jirayat land. 10. Though the aforesaid sale instances can be the basis on which market value can be determined, appropriate deduction will have to be made on the ground that there was no facility of water supply available to the acquired land and admittedly the appellant was drawing water from the adjoining land. 11. The trial Court has erroneously observed that there are Sale Deeds produced at Exhibit 35 to 41. Infact, exhibits 35 to 39 are the 7/12 extracts in respect of lands in subject matter of sale instances. Exhibits 40 and 41 are the certified copies of depositions of the witnesses in some other Land Acquisition References. The learned Judge has rightly discarded the method adopted by the said Special Land Acquisition Officer of valuing the lands on the basis of land revenue assessment. However, the learned Judge has adopted an erroneous method of taking average price of the sale instances which are found to be relevant. The : 10 : 10 : 10 : sale instances which are found to be relevant certainly afford a basis for determining the market value of the acquired land. However, adopting the method of taking average price of the sale instances is not legal and proper. The sale instances indicate that the price of the jirayat lands subject matter of the instances at Exhibits 31, 33 and 34 was approximately 34,000 per acre. Considering the fact that the the river is far away from the acquired land, the price of the acquired land will have to be taken at a figure which is much lesser than the price reflected from the sale instances. Considering the location of the acquired land, the market value thereof can be approximately taken as Rs.16,000/- per acre. Therefore, the market value will be approximately Rs.40,000/- per hectare. The learned Judge has not granted any compensation for fallow land. Considering the fact that the market value is fixed on a lower side than the price reflected from the comparable sale instances, flat rate of Rs.40,000/- per hectare can be applied to the entire acquired land and to that extent the award in First Appeal No.1300 of 1996 needs modification. 12. Now turning to the other two appeals, in case of First Appeal No.1348 of 1996 the acquired land is Gat No.286 admeasuring 29 Ares. I have perused the evidence : 11 : 11 : 11 : of the claimant adduced in the said case. He has stated that there was a well on the acquired land and he was getting water from Krishna Water Irrigation Scheme. He has stated that he was taking sugar-cane crop on the acquired land. Considering the said evidence, the learned trial Judge has rightly categorised the land as a seasonally irrigated land. 13. The land subject matter of First Appeal No.1262 of 1996 is bearing Gat No.219 admeasuring 87 ares. I have perused the evidence of the claimant in the said appeal. He has stated that land was an irrigated land having regular supply of well water of two wells and one borewell in his adjoining land bearing Gat No.211. He stated that he was taking banana and sugar-cane crop in the acquired land. The learned Judge has rightly classified the said land as a seasonally irrigated land. 14. In the other two appeals, reliance has been placed on the same sale instances which are relied upon in First Appeal NO.1300 of 1996. The lands subject matter of all the three appeals are situated in the same village. In case of a seasonally irrigated land the learned Judge has taken the market value at one and half times the market value of the jirayat land. In the present case market value of the jirayat land is fixed : 12 : 12 : 12 : at Rs.40,000/- per hectare. Hence, the market value will have to be fixed in case of seasonally irrigated lands at Rs.60,000/- per hectare. 15. Hence, the appeals must succeed in part and I pass the following order: FIRST FIRST FIRST APPEAL NO.1300 OF 1996 APPEAL NO.1300 OF 1996 APPEAL NO.1300 OF 1996 (i) First Appeal No.1300 of 1996 is partly allowed. The impugned judgment and award is modified by holding that the claimant will be entitled to market value at the rate of Rs.40,000/- per hectare for the entire acquired land. The claimant will be also entitled to statutory benefits as awarded by the Reference Court and proportionate costs of the reference. (ii) The appellant will be entitled to proportionate costs of this appeal from the respondent-State Government. (iii) The trial Court will complete the exercise of calculating the amount payable as per modified award within a period of three : 13 : 13 : 13 : months from the date on which writ of this order is received by the said Court. (iv) Writ to be sent expeditiously. FIRST FIRST FIRST APPEAL NO.1348 OF 1996 APPEAL NO.1348 OF 1996 APPEAL NO.1348 OF 1996 (i) First Appeal No.1348 of 1996 is partly allowed. The impugned judgment and award is modified by holding that the claimant will be entitled to market value at the rate of Rs.60,000/- per hectare for the entire acquired land. The claimant will be also entitled to statutory benefits as awarded by the Reference Court and proportionate costs of the reference. (ii) The appellant will be entitled to proportionate costs of this appeal from the respondent-State Government. (iii) The trial Court will complete the exercise of calculating the amount payable as per modified award within a period of three months from the date on which writ of this order is received by the said Court. : 14 : 14 : 14 : (iv) Writ to be sent expeditiously. FIRST FIRST FIRST APPEAL NO.1262 OF 1996 APPEAL NO.1262 OF 1996 APPEAL NO.1262 OF 1996 (i) First Appeal No.1262 of 1996 is partly allowed. The impugned judgment and award is modified by holding that the claimant will be entitled to market value at the rate of Rs.60,000/- per hectare for the entire acquired land. The claimant will be also entitled to statutory benefits as awarded by the Reference Court and proportionate costs of the reference. (ii) The appellant will be entitled to proportionate costs of this appeal from the respondent-State Government. (iii) The trial Court will complete the exercise of calculating the amount payable as per modified award within a period of three months from the date on which writ of this order is received by the said Court. : 15 : 15 : 15 : (iv) Writ to be sent expeditiously. Judge. Judge. Judge.