1 F.A.NO.119.95 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 119 OF 1995 1] Kashinath Govindrao Patil, Age 45 years occupation Agriculture, R/o Pala, Ta. Mukhed, District Nanded Dead through Legal representative- 1-A Kausalabai W/o Kashinathrao Patil Age 48 years occupation Household, R/o Pala, Ta. Mukhed District Nanded 1-B Narendra S/o Kashinath Patil,age 25 years occupation agriculture, R/o as above .. Appellant V E R S U S 1] The State of Maharashtra through Collector, Nanded 2] The Special Land Acquisition Officer, PT and MIW,Nanded. ..Respondent ... Mr. M.M.Patil,(Beedkar),Advocate for Appellant Mrs.V.A.More,Advocate for respondent ... CORAM : A.V. NIRGUDE, J. DATED : 1ST FEBRUARY, 2010 ORAL JUDGMENT : 1] This appeal is challenging the Judgment and Award passed by the learned Civil Judge Senior Division Biloli, District Nanded in Land Reference 2 F.A.NO.119.95 Case No. 85 of 1993. The appellant had filed Reference under section 18 of the Land Acquisition Act, for determination and enhancement of the compensation in respect of his land admeasuring 4H.94R of village Pala Ta. Mukhed District Nanded, acquired by the Government for certain Irrigation Project. 2] Facts leading to the Reference can be narrated as under : The Government published a notification under section 4(1) of the Land Acquisition Act on 31st May,1985. Despite the appellant’s objection, Notification under section 6 of the Land Acquisition Act was published and the notice under section 9(3)(4) of the Land Acquisition Act was issued, to which the appellant preferred an objection on 21st January, 1987 claiming the compensation at the rate of Rs.25,000/- per acre. The Land Acquisition Officer then passed the Award on 19th December, 1988.Thereafter he issued notice under section 12 of the Land Acquisition Act on 11th January,1989 and asked the appellant to come and get his compensation. The Land Acquisition Officer held that the market value of the land in question at the time of acquisition was Rs.6,000/- per acre. In addition to this, the Land Acquisition Officer also awarded compensation of Rs.5620/- towards existing trees of Mango Tamarind, Lemon and Guava. The Land Acquisition Officer also awarded Rs.29,689/- towards market 3 F.A.NO.119.95 value of the well, which existed in the land in question. As said above, the appellant preferred a Reference to the Civil Court. 3] The respondent Nos 1 and 2 opposed the Reference. The learned Civil Judge Senior Division allowed the parties to lead evidence and came to a conclusion that the compensation awarded to the appellant in respect of the land in question was inadequate and held that that the market value of the land on the date of notification under section 4(1) of the Land Acquisition Act was Rs.10,000/- per acre. The learned Judge of the Reference Court, however, did not disturb the finding in respect of the compensation payable for the trees and the well. Aggrieved by this judgment the present appeal is filed. 4] The question that arise for my consideration: 1] Whether the learned Judge of the Reference Court committed error in not considering the evidence in the form of sale instances produced on record by the appellant and to what extent ? 2] Whether the learned Judge of the Reference Court committed error in ignoring the existence of the well, source of irrigation to the land in question? 5] In support of his case, the appellant produced as many as five sale instances on the record. The learned Judge of the Reference Court accepted the sale instances on record and held 4 F.A.NO.119.95 that the certified copies of sale instances are admissible in evidence but did not discussed the sale instances in the judgment. He did not discuss as to which sale instance would be more suitable for the purpose of determining the market value of the land in question etc. It seems the learned Judge of the Reference Court placed more reliance on the Judgment and Award, placed on record by the appellant himself, in Land Acquisition Reference No.36 of 1990. The learned Judge even did not discuss as to how the Award in Land Acquisition Reference No.36 of 1990 was relevant for the purpose of determining the market value of the land in question. He made omnibus statement that "having regard to the above evidence, he would fixed the market rate of the land in question at the rate of Rs.10,000/- per acre." 6] Mr. Patil, the learned advocate appearing for the appellant is right when he said that the learned Judge of the Reference Court probably blindly followed the conclusion mentioned in the land Reference No. 36 of 1990. In that Judgment and Award the learned Judge of the Reference Court held that the market value of the land of village Pala was Rs.10,000/- per acre on the date of notification. I think a blind reliance placed on the Judgment and Award in Land Acquisition Reference No. 36 of 1990 by the learned Judge of the Reference Court is grossly erroneous. He ought to have discussed the evidence emerged from the 5 F.A.NO.119.95 sale instances and ought to have appreciated this part of the appellant’s case. Exh.20 and 23 are sale instances of lands situated at village Pala, so I think these sale instances are close to the case in hand. Sale deed Exh.20 was executed on 9th July,1984 and apparently a dry land admeasuring about 2 acres was sold at the rate of Rs.8000/- per acre, within a few months after the notification under section 4 of the Land Acquisition was issued on 31st May,1985. Therefore, this sale instance is quite relevant for our discussion. The sale deed at Exh.23 is of dated 27th December,1985. Here about one and half acres land of village Pala was sold for Rs. 15,000/-. This shows that the land was sold at the rate of Rs.10,000/- per acre. This sale deed is also relevant. As far as the timing is concerned, within a few months after the notification this sale transaction had taken place. 7] Other two sale instances, the sale deed Exhs. 24 and 21 are of village Chandola, which admittedly is not of a neighbouring village. The appellant admitted that the bus fare from his village Pala to village Chandola is Rs. 1.50. Besides, both sale instances (Exh.21 and 24) indicated that the market value of the land of village Chandola was Rs.30,000/- per acre. I think these two sale instances should be kept away from consideration. Last sale deed Exh.22 is of village Dhanaj and it also reflects the market value of 6 F.A.NO.119.95 the lands at village Dhanaj, at the relevant time was about 10,000/- to Rs.11,000/- per acre. 8] Having regard to the sale deeds Exh.20 and 23, I have no hesitation to draw a conclusion that the dry land of village Pala at the relevant time was fetching approximately Rs.10,000/- per acre. Ultimately, the conclusion of the learned Judge of the Reference Court is not far away from the conclusion, which I drew. 9] However, the learned Judge, indeed, made a gross error in appreciating the facts of the case by ignoring the existence of the well in the land in question. The appellant’s assertion in his deposition that this well was a constructed one and it had 30 feet diameter, depth of the well is 30 feet and the depth of the water is 20 feet, has gone unchallenged. The cross examination on behalf of the respondent did not touch this part of the evidence at all. As said above, the sale deed at Exhs.20 and 23 did not have well in it, so they were all dry lands, whereas the land in question had at least irrigation facility of the well, as described above. The appellant in his deposition has not stated specifically as to how and to what extent he was irrigating the land in question from the water of the well and for how many months in a year the water was available for irrigation. Nonetheless in the absence of the cross examination on this point, one can safely say that 7 F.A.NO.119.95 there was water source in the land in question and the land was irrigated one. As said above, the learned Judge of the Reference Court made no reference while appreciating the case of the appellant in respect of existence of the well and its use for irrigation. Having regard to the source of irrigation, it can be safely said that the land in question was irrigated one and not a dry land. 10] Mr. Patil, the learned Advocate appearing for the appellant placed reliance on the Judgment of our High Court in the case of State of Maharashtra and another Vs. Baliram Girdhar Patil reported in 2006(6) Mh.L.J.Page No.82, relevant part reads as under:- 14. The trial Court has accepted the sale deeds Exh.12, Exh.14 and Exh.16.The trial Court has also accepted market rate of jiryat land to that of Rs.20,000/- per acre (Rs.50,000/-) per hectare) The trial Court, however has considered the suggestion of learned District Government Pleader that market price of irrigated land can be one and half times more to that of the dry crop land. In the fist instance, suggestion given in the evidence of witness can not take place of proof. Secondly, availability of irrigation facility to the agricultural land is an important factor. The value and utility of the land in relation to its productivity depends upon the facility of irrigation to the land. Source of irrigation gives assurance for procurement of a good crop in such agricultural land. Cash crops give more land assured yield. Crop pattern can be 8 F.A.NO.119.95 scheduled and executed, if irrigation facility with water source is available. In the absence of irrigation facility, owner of such agricultural land i.e. dry crop land, is left at the mercy of nature. In this view of the matter, it would not be proper to consider the market price of irrigated land by one and half times more to that of the dry crop land. In my view, if the market price of dry crop land is worked out, for working out the market price of irrigated land, in the absence of any other evidence on record, double the market rate of jiryat land has to be awarded. The objective of the Land Acquisition Act, 1894 while awarding amount of compensation has to be kept in mind, for determining the market price of the agricultural land. As noted above, i the present case, the trial Court has referred to the suggestion of the learned District Government Pleader and has determined the market value of bagayat land to that of one and half times more of the jiryat land, illegally.” 11] I am inclined to follow the same reasoning and therefore would enhance the compensation accordingly. However, having done so, I am inclined to deduct the compensation awarded to the appellant in respect of the well. It is settled law that when irrigated land’s market value is determined, there can not be a separate compensation for the well. 12] Hence, the following order- ORDER I] The appeal is partly allowed. 9 F.A.NO.119.95 II] The appellant is entitled for enhanced compensation of the land admeasuring 4 Hectare 94 R at the rate of Rs. 20,000/- per acre i.e. Rs.50,000/- per hectare. III] The appellant is not entitled to any compensation in respect of the well and the amount of Rs.29,689/- awarded towards the well shall stand deducted from the Award amount. IV] The rest of the relief granted by the Reference Court namely (D) to (H), shall remain undisturbed. V] The appellant is also awarded costs of this appeal. Sd/- (A.V. NIRGUDE, J.) MTK/ ok