1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.461 OF 1996 Machindra Malhari Shirsath, age major, occupation Agril. r/of Shirsathwadi, Taluka Appellant/ Pathardi, Dist. Ahmednagar. orig.claimant versus The State of Maharashtra Respondent/ orig.opponent WITH FIRST APPEAL NO.477 OF 1996 Kausabai Ramrao Shirsath, age 65 years, occup.Agril r/of Shirsathwadi, Taluka Appellant/ Pathardi, Dist.Ahmednagar. orig.claimant versus The State of Maharashtra Respondent/ orig.opponent ------------------------------------------------------ Shri V.S.Bedre, Advocate for appellant in both appeals. Smt. R.K. Ladda, A.G.P. for Respondent-State. ------------------------------------------------------ Coram : P.R. Borkar, J. Date : April 23, 2010. ORAL JUDGMENT 01. These are the appeals filed by two claimants being aggrieved by the award of inadequate compensation in two Land Acquisition References, LAR No.147 of 1991 and 167 of 1991 decided by Joint Civil Judge, Senior Division, Ahmednagar on 7.4.1995. 2 02. It is not disputed that the lands involved in both the Land Acquisition References were situated at village Sirsathwadi, Taluka Pathardi and those were acquired for the purpose of construction of a percolation tank. Notification under Section 4 of the Land Acquisition Act is issued on 31.7.1980 and the award was passed by the Land Acquisition Officer on 14.2.1989. Not being satisfied with the market rate determined by the Land Acquisition Officer, References under Section 18 of the Land Acquisition Act were made at the requests of present appellants. Reference Court, on considering the evidence, negatived the claim of both the appellants-claimants that the acquired lands were irrigated lands. The learned Reference Judge ultimately held that the acquired lands were dry lands and allowed market rate at Rs. 30,000/= per hectare and thus additional compensation was paid over and above what was awarded by the Land Acquisition Officer. Not being satisfied with the market rate fixed by the Reference Court, present two appeals are filed. 03. Heard learned counsel Shri V.S. Bedre for appellants in both the appeals and Smt. Rekha Ladda, learned A.G.P. for Respondent-State. 3 04. It is argued by Advocate Shri V.S.Bedre for the appellants that considering sale instance (Exh.25) which was dated 2.11.1981 whereunder 63 R. land was purchased at Rs.32,000/= by Kausabai (appellant in First Appeal No.477/1996), compensation ought to have been awarded at the rate of Rs.50,000/= per hectare. In fact, several sale instances were produced on record. In both the appeals, the same sale instances are relied upon. 05. So far as evidence regarding nature or quality of the property is concerned, in First Appeal No.461 of 1996, which is against the decision in LAR No.147 of 1991, the claimant Machindra examined himself at Exhibit 13. He stated that his land bearing survey No.479/1 admeasuring 65 R. was acquired. There was also portion of 1 R. as pot Kharab which was acquired. He stated that he was irrigating acquired land by well water from survey No. 514/3. He had 2 Anna share in the said well. He was using river water and growing crops like Lucerne grass, maize, vegetables, banana etc. According to the witness, river water was available throughout the year. He, therefore, claimed market price at Rs. 50,000/= per acre. He further stated that he was 4 earning Rs.25,000/= to Rs.30,000/= per year from the acquired land. 06. Reference Court held that the V.F.7x12 extract (Exh.9) shows that only bajara and Math crops were taken in the acquired land and those were necessarily crops taken in jirayat lands. The entries in the record of rights produced at Exhibit 9 are for the period 1969-70 to 1975-76 and for about two years the land was fallow. But, in other five years the crops were taken which were necessarily jirayat crops. Entries in V.F.7x12 extracts of subsequent years indicated that from 1976-77 onwards the land was under percolation tank. So, it cannot be said that the conclusion of the trial court that when the land was acquired it was a dry land is in any way wrong conclusion. 07. So far as First Appeal No.477 of 1996, which arises out of decision in L.A.R. No.167 of 1991, is concerned, there is evidence of claimant Kausabai at Exhibit 15. She also stated that at the time of acquisition, her land survey No.513/1 admeasuring 4 hectare 45 R., was irrigated land. According to Kausabai, market price for irrigated land then 5 prevailing was Rs.50,000/= per acre. Acquired land was irrigated by using water from well in survey No. 514/3. There were two wells in the land survey No. 514/3 and she had six Anna share in well water. Kausabai further stated that land survey No.514/3 exclusively belonged to her. She produced V.F.7x12 extracts. The Reference Court held that though V.F. 7x12 extracts were produced, those did not show that the acquired land was irrigated land. The V.F. 7x12 extract of the acquired land for the year 1994-95 was produced. Thus it was for the period much subsequent to acquisition of lands in 1986. The Talathi had given certificate at Exhibit 21 that old survey No.513 is given new survey No.93. The acquired land is survey No.513/1. So, it was not the entire survey number that is acquired. It is possible that after percolation tank was constructed in 1986 or thereafter, remaining land from survey No.513 might have been irrigated. There is V.F. 7x12 extract of land survey No.514/1 at Exh.16. It is for the year 1969-70 to 1973-74. Crops like bajara and jawar were taken in the land. Most of the time, the land was fallow. At Exhibit 17, there is V.F.7x12 extract of survey No.514/3 and though two wells are shown in the land, in "Other Rights" column, crops, such as, bajara 6 and jawar were taken, thereby indicating that in 1969-70 to 1975-76 there was no much water in the well. Else, the land would not have remained fallow during that period. So, considering V.F.7x12 extracts of the land in which there was well, it is is clear that there was no much water even to irrigate that land itself. It is, therefore, not possible to rely on the bare word of claimant Kausabai that the acquired land was irrigated land. 08. In the circumstances, the conclusion drawn by the reference court that the lands acquired were dry lands, needs to be confirmed. 09. That takes us to the market rate prevailing in July 1986 when the Notification under Section 4 of the Land Acquisition Act was issued. There are more than five sale instances produced on record. Certified copies of sale deeds, can very well be considered. The sale deeds are produced in LAR No.167 of 1991 against the decision wherein First Appeal No. 477 of 1996 is filed. 10. At Exhibit 26 is the sale deed dated 4.3.1985. 59 R. land out of survey No.247/2+7 was sold 7 for Rs.20,000/=. Along with the land, half share in the well situated in survey No.242/1 and 1/8th share in well situated in survey No.242/6 were sold. There were two mango trees in the land. The land was described as bagayat land. So, this cannot be considered as sale instance of land comparable with the acquired lands. 11. At Exhibit 27, there is sale deed dated 13.5.1985. It is in respect of 29 R. land out of survey No.11/2 sold for Rs.11,000/=. It is stated in the sale deed that the land was sold along with share in well situated in survey No.541 (Old). There were two tamarind trees which were yielding fruits. The land was described as bagayat land. So, this also cannot be considered to be sale instance of land comparable with acquired land. 12. At Exhibit 28, there is another sale deed dated 13.5.1985 whereunder 41 R.land within limits of Pathardi Gram Panchayat was sold for Rs.5,000/-. So, it being adjacent to the village, it had special advantage. Still, its market price was Rs.12,500/= per hectare. Reference Court has awarded rate of Rs. 30,000/= per hectare. 8 13. At Exhibit 29, there is one more sale deed which is dated 18.3.1985. Share to the extent of 1/3rd out of survey No.216/5 admeasuring 65 R. was sold for Rs.7,000/=. It was sold along with share in well water and also along with provision for taking water. The land was bagayat land and therefore not comparable with the acquired land. Still, rate for the sale instance could be Rs.21,000/= per hectare. 14. At Exhibit 30, there is another sale instance dated 21.6.1984. Land admeasuring 8 R. along with share in well water was sold for Rs.3000/=. It was also within limits of Gram Panchayat at Pathardi. So, this also was not a sale instance comparable with lands acquired. 15. At Exhibit 31, there is a sale deed dated 31.1.1984. For Rs.15,000/=, 41 R. land was sold from survey No.793/3C. there was well in the land and along with the land, 1/3rd share in the well water was also sold. The sale deed also includes sale of share in water in the well situated in survey No.792. Hence, this is sale of a bagayat land and thus not a sale instance comparable with acquired lands. 9 16. That takes us to sale deed at Exhibit 25, dated 2.11.1981 under which the appellant Kausabai herself purchased 63 R. land along with 1/4th share in the well situated in survey No.527/2 for Rs.32,000/=. The land is irrigated. It is stated in the sale deed that as per the agreement for sale dated 24.8.1981, the land had been in possession of the purchaser. 17. It is argued on behalf of the appellant Kausabai before this court that even if we consider rise in market rate by 5 to 10 per cent, even then the price of the land purchased by Kausabai would have been Rs.50,000/= in 1986 and, therefore, compensation at Rs.50,000/= per hectare for jirayat land may be granted. In my opinion, there is no evidence to show that the prices increased by 7 to 10 per cent every year in between years 1981 to 1986. The land sold by sale deed at Exh.25 has distinct advantage. It was irrigated land with benefit of well water. There were also two lemon trees. In my opinion, it would be wrong to decide market rate of dry land by comparing or considering the market rate of irrigated land with share in well water by doing approximation. It is no where stated that no sale instance of dry land was available at Sirsathwadi. It is not that Reference 10 Court has not given any increase in compensation awarded by the Special Land Acquisition Officer. The Reference Court awarded market rate of Rs.30,000/= per hectare for dry land and thus additional compensation is paid by giving proper reasons for the same. 18. Having regard to the facts and circumstances on record, and considering the sale instances, in my opinion, these are not the cases wherein interference by this court in the awards passed by the Reference Court is called for. 19. Hence, both first appeals are dismissed. pnd/fa461.96 (P.R.BORKAR, J.)