1 F.A.No.1054.10 +8 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD (1) FIRST APPEAL NO. 1054 OF 2010 The State of Maharashtra, Through: The Collector Latur and another ...APPELLANTS. VERSUS Rupsen S/o Dhondiba Hande, Age 30 years,Occup.Farmer, R/o village Shirsal,Ta.Ausa District Latur. ...RESPONDENT. WITH (2) FIRST APPEAL NO. 1236 OF 2010 The State of Maharashtra, Through: The Collector Later and another ...APPELLANTS. VERSUS Waman Bapurao Patil, Age 60 years,Occup. Farmer, R/o village Shirsal, Ta. Ausa District Latur. ...RESPONDENT. WITH (3) FIRST APPEAL NO. 1237 OF 2010 The State of Maharashtra, Through: The Collector Latur and another ...APPELLANTS. VERSUS 2 F.A.No.1054.10 +8 Sugriv S/o Sadhu Survase, Age 45 years,Occup. Farmer, R/o village Shirsal,Ta. Ausa District Latur. ...RESPONDENT. WITH (4) FIRST APPEAL NO. 1238 OF 2010 The State of Maharashtra, Through: The Collector Latur and another ...APPELLANTS. VERSUS Saraswati W/o Maruti Kunte, Age 25 years,Occup.Farmer, R/o village Shirsal,Ta.Ausa District Latur. ...RESPONDENT. WITH (5)FIRST APPEAL NO. 1240 OF 2010 The State of Maharashtra, Through: The Collector Latur and another ...APPELLANTS. VERSUS Dnyanoba S/o Govind Hande, Age 25 years,Occup.Farmer, R/o village Shirsal,Ta. Ausa District Latur. ...RESPONDENT. WITH (6) FIRST APPEAL NO. 1241 OF 2010 The State of Maharashtra, Through: The Collector Latur and another ...APPELLANTS. VERSUS 3 F.A.No.1054.10 +8 Manik Dashrath Gaikwad, Age 40 years,Occup. Farmer, R/o village Shirsal,Ta. Ausa District Latur. ...RESPONDENT. WITH (7) FIRST APPEAL NO. 1242 OF 2010 The State of Maharashtra, Through: The Collector Latur and another ...APPELLANTS. VERSUS Bhaurao Dadarao Pawar, Age 60 years,Occup.Farmer, R/o village Shirsal,Ta.Ausa District Latur. ...RESPONDENT. WITH (8) FIRST APPEAL NO. 1244 OF 2010 The State of Maharashtra, Through: The Collector Latur and another ...APPELLANTS. VERSUS Babruwan S/o Rama Hande, Age 40 years,Occup.Farmer, R/o village Shirsal,Ta.Ausa District Latur. ...RESPONDENT. WITH (9) FIRST APPEAL NO. 1245 OF 2010 The State of Maharashtra, Through: The Collector Latur and another ...APPELLANTS. 4 F.A.No.1054.10 +8 VERSUS Ganpati S/o Rama Hande, Age 60 years,Occup.Farmer, R/o village Shirsal,Ta.Ausa District Latur. ...RESPONDENT. ... Shri.V.B.Ghatge,A.G.P.for Appellants. ... CORAM: K.K. TATED, J. DATE : 6TH JULY, 2010. PER COURT : 1. Heard learned A.G.P. for the appellants. 2. The appellants preferred above mentioned Appeals against the Judgment and Award dated 28th June, 2006, passed by the 3rd Adhoc Additional District Judge, Latur, on the grounds that the Reference Court enhanced the compensation from Rs. 230/- per Are to Rs.500/- Per Are. A FEW FACTS OF THE MATTERS ARE AS UNDER: 3. In the present matters the Special Land 5 F.A.No.1054.10 +8 Acquisition Officer ( Hereinafter referred to as “SLAO”) issued notification under Section 4 of the Land Acquisition Act on 10th January, 1994 for acquiring the respondents- original claimant’s land for rehabilitation of earth quake affected villages from Killari region, on account of earth quake on 30.09.1993, which resulted in mass destruction of human lives and public property. After following due process of law, the SLAO passed Award and granted compensation in respect of the acquired lands at the rate of Rs.230/- Per Are i. e. Rs.23,000/- per Hector. 4. Being aggrieved by the said Award passed by the SLAO, the respondents- original claimants preferred References under section 18 of the Land Acquisition Act for enhancement of compensation. In the said References, the respondents-original claimants, claimed the compensation in respect of acquired lands at the rate of Rs.80,000/- per Acre, i. e. Rs.2,00,000/- per Hector. 6 F.A.No.1054.10 +8 5. All these References decided by the Reference Court, vide its common Judgment and Award dated 28th June, 2006 and awarded enhanced compensation in respect of the acquired lands as follows : Sr.N o. First Appeal Nos Enhanced compensat ion Rs. Ps. Area H. ARE 01] 1054 Of 2010 7,560=00 00=28 02] 1236 Of 2010 28,350=00 01=05 03] 1240 of 2010 26,190=00 01=87 04] 1238 of 2010 24,840=00 00=92 05] 1237 of 2010 27,000=00 01=00 06] 1245 of 2010 12,700=00 00=47 07] 1244 of 2010 12,960=00 00=47 08] 1242 of 2010 12,700=00 00=47 09] 1241 of 2010 43,200=00 01=60 . All these figures are taken from the Foot Note annexed by the appellants in the present First Appeals. 6. The learned A.G.P. appearing on behalf of the appellants submits that Reference Court erred in coming to the conclusion that the respondents- original claimants are entitled to enhance 7 F.A.No.1054.10 +8 compensation in respect of the acquired lands at the rate of Rs.500/- Per Are, on the basis of sale instances produced by them. He further submits that the Reference Court failed to appreciate the relevant factors, while the SLAO had considered all the relevant factors for fixing the amount of compensation. He further submits that the Reference Court failed to appreciate that the acquired lands could not have been compared with the lands covered by the sale instances because of location, nature and the potentiality of the lands in question. On the basis of above submissions, Mr. Ghatge, learned A.G.P. appearing on behalf of the appellants submits that this is fit case to admit the Appeals. 7. I have gone through the Judgment passed by the Reference Court. It is to be noted that at the time of enhancing the compensation in respect of the acquired lands at the rate of Rs.500/- per Are, the Reference Court relied on the sale instance at Exh.26 in respect of piece of land- 8 F.A.No.1054.10 +8 cum-plot admeasuring 8 Gunthas, which came to be sold for Rs.55,000/- on 25th November, 1993 i.e. Rs.6,875/- per Are. The Reference Court also relied on another sale deed at Exh. 27, which is of dated 24th April,1992 and in respect of agricultural land ad measuring 3 Acres 15 Gunthas sold for Rs.1,79,500/- i. e. at the rate of Rs. 569/- Per Are. As against this, the appellants had not produced any cogent evidence on record to show that the respondents-original claimants are not entitled to enhance compensation in respect of the acquired lands. Not only that no one entered into witness box on behalf of the appellants to justify the Award passed by the SLAO. 8. In the present case, notification under Section 4 of the Land Acquisition Act came to be issued on 10th January, 1994, whereas the Reference Court relied on two sale instances of dated 25th November,1993 and 24th April,1992. It is to be noted that the sale instance dated 24th April,1992 is in respect of 3 Acres and 15 Gunthas. In this 9 F.A.No.1054.10 +8 sale instance the land was sold at the rate of Rs.569/- per Are. Both the sale instances are from the same locality, from where the respondents-original claimant’s land were acquired. It is to be noted that at the time of fixing the market value of the acquired land the Court has to do some guess work. The Apex Court in the matter of Chimanlal Hargovinddas Vs. Special Land Acquisition Officer, Poona and another, reported in AIR 1988 SUPREME COURT 1652, wherein it is held, as under: “4. The following factors must be etched on the mental screen: (1) A reference under section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the 10 F.A.No.1054.10 +8 Land Acquisition officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before 535 it. It is not the function of the Court to suit in appeal against the Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition officer, as if it were an appellate court. (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. (4) The claimant is in the 11 F.A.No.1054.10 +8 position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. (5) The market value of land under acquisition has to be determined as on the crucial date of publication of the notification under sec. 4 of the Land Acquisition Act (dates of Notifications under secs. 6 and 9 are irrelevant). (6) The determination has to be made standing on the date line of valuation (date of publication of notification under sec. 4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed thatthe vendor is 12 F.A.No.1054.10 +8 willing to sell the land at a reasonable price. (7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instance which provides the index of market value. (8) only genuine instances have to be taken into account. (Some times instances are rigged up in anticipation of Acquisition of land). (9) Even post notification instances can be taken into account (1) if they are very proximate,(2) genuine and (3) the acquisition itself has not motivated the purchaser to pay a higher price on account of the resultant improvement in development prospects. (l0) The most comparable instances out of the genuine instances have to be identified 13 F.A.No.1054.10 +8 on the following considerations: (i) proximity from time angle, (ii)proximity from situation angle. (11) Having identified the instances which provide the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-a-vis land under acquisition by placing the two in juxtaposition. (12) A balance-sheet of plus and minus factors may be drawn for this purpose and the relevant factors may be evaluated in terms of price variation as a prudent purchaser would do. (13) The market value of the land under acquisition has there after to be deduced by loading the price reflected inthe instance 14 F.A.No.1054.10 +8 taken as norm for plus factors and unloading it for minus factors. (14) The exercise indicated in clauses (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:- Plus factors Minus factors 1. smallness of size. 1. largeness of area. 2. proximity to a road. 2. situation in the interior at a distances from the Road. 3. frontage on a road. 3. narrow strip of land with very small frontage compared to death. 4.nearness to developed area. 4.lower level requiring the depressed portion to be filled up. 5. regular shape. 5. remoteness from developed locality. 15 F.A.No.1054.10 +8 6.level vis-a-vis land under acquisition. 6. some special Disadvantageous factor which would deter a purchaser. 7. special value for an owner of an adjoining property to whom it may have some very special advantage. (15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds cannot be compared with a large tract or block of land of say l0000 sq. yds or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for 16 F.A.No.1054.10 +8 purchasers (meanwhile the invested money will be blocked up)and the hazards of an entrepreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving out lands and plotting out small plots. The discounting will to some extent also depend on whether it is a rural area or urban area, whether building activity is picking up, and whether waiting period during which the capital of the entrepreneur would be looked up, will be longer or shorter and the attendant hazards. (16) Every case must be dealt with on its own facts pattern bearing in mind all these factors as a prudent purchaser of land in which position the Judge must place himself. 17 F.A.No.1054.10 +8 (17) These are general guidelines to be applied with understanding informed with common sense.” 10. In these cases small holdings have been acquired about 15 years back and Reference Court awarded additional compensation of not more than Rs.50,000/-. The State Government feeling aggrieved, alongwith other cases, in which much larger compensation was awarded, preferred appeals in these cases also. These small land holders having little means are being required to fight this litigation for the last 15 years and have undergone a lot of trouble, inconvenience and have incurred large expense. The additional compensation awarded to them is hardly sufficient to compensate them for the trouble they have undergone for all those years, taking into consideration considerable fall in the money value during the last 15 years. They had to undergo the 18 F.A.No.1054.10 +8 suffering for all those years for no fault of theirs. In my opinion these are not the fit cases where those appeals should be admitted and respondents be further vexed. The Courts in India are not only the Courts of law. Every Court in India is a Court of equity as well as of law. The Courts have to administer justice, but in so doing they have to guard that the litigants are not vexed for no fault of theirs. This has to be more guarded when the small landholders, with little means are arraigned against the State, to see that no injustice is caused to the poor citizens, whose small land holdings are acquired against their will by the State and for no fault of theirs they have to attend the Courts for a number of years. 11. Taking into consideration all those social, equitable and legal aspects, in my opinion it is not at all justifiable to admit those appeals. Hence, those appeals are dismissed. It may be mentioned that nothing stated herein shall be used as precedent while deciding the appeals admitted 19 F.A.No.1054.10 +8 from the same group involving larger compensation. 12. Considering the above mentioned facts and circumstances, I do not find substance in the present Appeals and same are dismissed. No order as to costs. [K.K. TATED, J.] MTK