1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 73 OF 1995 1. Gangadhar S/o Annasaheb Dhage (Died his Legal Representatives) 1/A Dinaji S/o Gangadhar Dhage, Age : 30 Years, Occu.: Service, R/o Sendra, Tq. & Dist. Parbhani. 2/A Munja S/o Gangadhar Dhage, Age : 26 Years, Occu. : Agril., R/o As above. 3/A Udhav S/o Gangadhar Dhage, Age : 24 Years, Occu. : Agril., R/o As above. 4/A Bhagwat S/o Gangadhar Dhage, Age : 20 years, Occu. : Agril., R/o As above. 2. Rama S/o Annasaheb Dhage, (Died his Legal Representatives) 2/A Uttam S/o Rama Dhage, Age : 25 Years, Occu. : Agril., R/o Sendra, Tq. Parbhani. 3. Kishan S/o Annasaheb Dhage, Age : 33 Years, Occu. : Agril., R/o As above. .. .. APPELLANTS (Orig. Petitioners) Versus 1. The State of Maharashtra, Through Collector, Parbhani. 2 2. The Special Land Acquisition Officer, Jayakwadi Project, Parbhani. .. .. Respondents (Orig. Opponents) Shri S. V. Warad, Advocate for the Appellants. Shri V. D. Godbharle, A.G.P. for the Respondents/State. CORAM : A. V. NIRGUDE, J. DATE : 06TH OCTOBER, 2009. ORAL JUDGMENT : 1. This first appeal is filed against the judgment and award passed by learned Civil Judge Senior Division, Parbhani in Land Acquisition Reference No. 204/1991 decided on 27th September, 1994, partly allowing the claim of the appellants seeking enhancement in compensation. In all thirteen pieces of lands were acquired by the Government for establishing Agricultural University at Parbhani. The respondent No. 2 by his award estimated the market value of the lands and offered Rs. 1500/- to Rs. 2000/- per acre as compensation. The Special Land Acquisition Officer also took into account existence of standing trees in one of the awards and offered certain compensation for the trees. The award was challenged before the reference Court. 2. The appellants asserted that, the market value of the lands was more than Rs. 5,000/- per acre, if they are non irrigated and the market value of irrigated land was more than Rs. 6,000/- per acre. They also asserted that, the Land Acquisition Officer failed to take into account the fact that, there was a pukka built up well in one of the lands namely land survey No. 125/5. The appellants, therefore, 3 demanded Rs. 6,000/- per acre for certain lands which were under irrigation (Those lands admeasuring 22 Acre 16 Guntha). The appellants demanded Rs. 5,000/- per acre for their dry land which were admeasuring 27 Acre 33 Guntha. They further demanded Rs. 10,000/- for the trees and Rs. 15,000/- for the pukka well constructed in land survey No. 125/5. 3. The Respondents filed written statement and opposed the reference. The appellants then adduced evidence and produced on record a land acquisition award Exhibit 20 in respect of lands acquired in the vicinity. The learned Judge of the Reference Court accepted the estimate of the previous award Exhibit 20 and held that the appellants were entitled to Rs. 4,000/- per acre compensation for non irrigated lands and Rs. 5,000/- per acre compensation for irrigated lands. However, the appellants brought on record also other evidence in the form of sale instances which are at Exhibit 23 to 25. These sale instances show that 10 Acre land of village Parbhani was sold by one Deshmukh to a proposed Co-operative Housing Society at the rate of Rs. 6,000/- per acre. (Note : The deposition of purchaser of sale instance land is not recorded in this land reference, but his deposition was recorded in some other land reference bearing Land Acquisition Reference No. 107/1982 and a certified copy of the statement is brought on record. The deposition of this witness is not useful for our purpose, in the sense, that he is not been making any reference to the land in question vis a vis his land which he purchased is from village Parbhani.) The question is whether the land in question is comparable to the land in the sale instance. 4 5. The learned Judge of the Reference Court took into consideration the evidence on record and observed that, the sale instances reflect market price at the rate of Rs. 5,000/- to Rs. 6,000/- per acre. He also observed that, the sale deeds are comparable with the lands of the appellants. However, the learned Judge of the Reference Court awarded Rs. 4,000/- to Rs. 5,000/- as compensation per acre for non irrigated and irrigated lands. The learned Judge virtually refused to utilize the market value of the land in sale instances for the purpose of deciding market value of the reference lands. The learned advocate appearing for the appellants challenged and criticized this approach of the Reference Court. He asserted that, the learned Judge of the Reference Court recorded no reason, as to why he did not utilize marked price of the lands reflected in the sale instances, though he observed that, the sale deeds can be compared with the lands under reference. This criticism of the judgment of the Court below is quite correct. However, there are independent reasons why the lands of sale instances cannot be compared with the lands under reference. Exhibit 23 and 24 are the sale deeds of a land situated at Parbhani. The location of the land is mentioned as it is out side the municipal limits of Parbhani town. But inside the limits of Panchayat Sammittee Parbhani. As said above these lands were purchased for establishing a housing society. There is clear indication that, these lands were close to Parbhani city and, therefore, could fetch Rs. 6,000/- per acre. The lands under reference are of village Shendra. There is nothing on record to show, as to whether, the lands under reference are also close to the 5 municipal limits of Parbhani city. There is nothing on record to find out, whether the lands in question had potential of being used for housing purposes. So the lands under sale deeds Exhibit 23 and 24 are not quite comparable to the lands under reference. 7. The sale deed at Exhibit 25 is of land situated at village Sayala Khating. Only 04 Guntha land was sold for a price of Rs. 500/- Having regard to the small size of this piece of land compared to the land under reference, this sale deed is not of much help. In any case this sale deed suggests that, the lands of village Sayala were sold at relevant time for Rs. 4,000/- to 5,000/- per acre. Having regard to the evidence of one of the appellants I do not think that the learned Judge of the Reference Court had made any error in making assessment in respect of the market price of the land under reference. I am therefore, not inclined to interfere there in this part of the judgment of the Lower Court. 8. There is hardly any material to disturb the findings of the Reference Court, about the compensation given in respect of the trees standing on the land under reference. 9. The last question is whether the appellants are entitled to separate compensation for the well which was situated in land survey No. 125/5. The learned Judge of the Reference Court committed an error in coming to a conclusion that, there is nothing on record to show that, the well was acquired. There is ample material on record to show that, the well belonging to the appellants was situated at a piece of land which was acquired fully. I have no difficulty to accept the contention of the appellants that, the well situated in survey No. 125/5 has been acquired and that the 6 Land Acquisition Officer did not offer any compensation for the same. The Reference Court also rejected the claim in respect of the well. The question is whether the appellants are entitled to any independent compensation for the well in question. I have already observed above that, there is no dispute between the parties about the fact that, the Reference Court and also the Land Acquisition Officer divided the lands under reference into two classes, one class of irrigated lands and the other of non irrigated lands. The irrigated lands are considered more valuable and enhanced compensation is awarded for them. In this background one has to examine the claim in respect of the well. The learned Assistant Government Pleader appearing on behalf of respondent/State Shri V. D. Godbharle placed reliance on the judgment of Supreme Court in the case of O. Janardhan Reddy and others vs. Special Deputy Collector L.A. Unit IV LMD Karimnagar and others reported in (1994) 6 Supreme Court Cases 456. The situation and the demand was quite similar in the reported case. In the reported case also there was land acquisition proposal, there were classification of lands based on irrigation and availability of water for cultivation. The Courts below awarded enhanced compensation for the lands which were irrigated. Despite of this, the appellants (Claimants) demanded separate compensation for the well, that was situated in the acquired land. The Supreme Court held that, the estimated construction cost of irrigation well of agricultural land cannot be the basis for awarding compensation for such well independently, and the compensation awardable for the agricultural land for the benefit of which such well existed includes 7 that of the well. The ratio of this judgment would squarely apply to the facts of the present case. The appellants thus are not entitled to independent compensation for the well in question. In view of this, the appeal cannot succeed. The appeal stands dismissed. [ A. V. NIRGUDE, J.] bsb/Oct.09