1 FA.1099.92 ndm IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION FIRST APPEAL NO. 1099 OF 1992 The State of Maharashtra and another. ... Appellants Versus Smt. Parvatibai w/o Malikarjunappa Deshmukh, Since deceased through her legal heir: Somshankar Malikarjun Deshmukh. ... Respondent ----- Mr. A.R.Patil, AGP for the Appellants. None for the Respondent. ----- CORAM : A.S.OKA, J. DATE : 22 nd June, 2011. ORAL JUDGMENT: 1 Called out for final hearing. Heard the learned counsel appearing for the Appellants. None appears for the Respondent. 2 The challenge in this appeal is to the judgment and award dated 26 th April, 1991 passed by the learned Joint Civil Judge (Senior Division) at Solapur in a reference under Section 18 of the Land 2 FA.1099.92 Acquisition Act, 1894 (hereinafter referred to as “the said Act”). 3 The acquisition is in respect of the land bearing CTS No.79 at Solapur. The area of the acquired land is 597 square meters. The notification under Section 6 of the said Act read with Section 126(4) of the Maharashtra Regional and Town Planning Act, 1966 was issued on 23 rd May, 1981, which was amended by corrigendum dated 6 th December, 1983. The award under Section 11 of the said Act was made on 13 th March, 1984. The Special Land Acquisition Officer offered market value at the rate of Rs.250/- per square meter. In the reference made at the instance of the Respondent, the market value was claimed at the rate of Rs.1,000/- per square meter. By the impugned judgment and award, the market value of the land was fixed at the rate of Rs.300/- per square meter. The Reference Court granted cost of construction at the rate of Rs.50/- per square meter. Statutory benefits were granted apart from the enhancement in the market value. 3 FA.1099.92 4 The learned AGP appearing for the Appellants has taken the Court through the impugned judgment and documents on record. He submitted that the Respondent – claimant did not adduce any evidence for discharging the burden on her to prove that the market value offered under Section 11 of the said Act was inadequate. He submitted that in absence of any evidence, only on the basis of the conjunctures and surmises that the enhancement in the market value has been granted. He submitted that the reference ought to have been dismissed. None appears for the Respondent. 5 I have given careful consideration to the submissions. A claimant in a reference under Section 18 of the said Act is in place of the plaintiff. The burden is on him to prove that the market value offered by the award under Section 11 of the said Act was inadequate. 6 Perusal of the record shows that the son of the original claimant was examined. His name is Somashankar Malikarjun Deshmukh, who claimed that the acquired land has been given to him 4 FA.1099.92 under the will of the deceased claimant. He stated that on the acquired land, there was a structure having roof of iron sheet. The structure was 30 to 40 years old. He stated that the acquired land was situated at Laxmi Market area which is known as heart of the city. He relied upon the report of one Mr.Kelkar which was at Exhibit – 32. There is no reference made in his deposition to any comparable sale instance. 7 The second witness examined is one Mr.Sidramappa Sharanappa Almelkar. He was essentially examined to prove the will. It appears that Mr.Kelkar whose report was produced, was not examined and the claimant examined Mr.Dilip Kamalakar Dudhankar as a witness. He stated that he was a Government approved valuer. He visited the property on 30 th July, 1990. He opined that the market value of the property was Rs.785/- per square meter. However, he has not relied upon any sale instance in his evidence. In the report at Exhibit – 32, Mr.Kelkar had made a reference to the sale instances, which are not produced before the Reference Court. The Appellants examined Mr.Arvind Laxman Jagtap, who was working in the Town Planning Office. 5 FA.1099.92 He is not an expert valuer as his educational qualification is diploma from ITI. 8 Perusal of the impugned judgment and award shows that the learned trial Judge has made a reference to the various sale instances, which have been referred to in the award under Section 11 of the said Act. None of the said sale instances were produced and proved before the Reference Court. On the basis of the sale instances referred to in the award under Section 11 of the said Act, the learned Judge has come to the conclusion that the market value of the acquired land was Rs.300/- per square meter and that a sum of Rs.50/- per square meter deserves to be granted on account of cost of construction. Perusal of paragraph No. 12 of the impugned judgment shows that the learned Judge has completely ignored the scope of reference made under Section 18 of the said Act and he seems to have proceeded on the erroneous footing that the reference is an Appeal against the award made by the Special Land Acquisition Officer. Even if the Respondent – claimant was relying upon any of the instances, which were referred to in the award under Section 6 FA.1099.92 11 of the said Act, the same could have been considered provided the instances were produced and proved before the Court. 9 With such kind of evidence, the only conclusion which is possible is that the Respondent – claimant has failed to discharge the burden of proving that the market value offered by the award under Section 11 of the said Act was inadequate. There is no basis for granting market value of the construction on the acquired land. A separate compensation could not have been awarded on account of cost of the structure. In any event, there is no evidence whatsoever adduced on record for determining the cost of construction. 10 Hence, the appeal must succeed and I pass the following order: i. The impugned judgment and award dated 26 th April, 1991 is quashed and set aside and the Land Acquisition Reference No.200 of 1984 stands dismissed ; 7 FA.1099.92 ii. The appeal is allowed on above terms with no order as to costs ; iii. Civil Application No.480 of 1993 does not survive and the same is disposed of. [ A.S.OKA, J ]