1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. FIRST APPEAL NO.498 OF 1993. 1. Chandrakant Namdev Avhad, Age major, Occ.Agriculturist, R/o Khopuri, Tal. Nagar, Dist. Ahmednagar. 2. Suryakant Namdev Avhad, Age major, Occ.Agriculturist, R/o Khospuri, Tal.Nagar, Dist. Ahmednagar. 3. Bharat Namdev Avhad, Age major, Occ.Agriculturist, R/o Khospuri, Tal.Nagar, Dist. Ahmednagar. 4. Rajendra Namdev Avhad, Age major, Occ.Agriculturist, R/o Khospuri, Tal.Nagar, Dist.Ahmednagar. ... Appellants. Versus The State of Maharashtra ... Respondent. ... WITH FIRST APPEAL NO.499 OF 1993. 1. Bhimrao Namdeo Avhad, Age major, Occ.Agriculturist, 2 R/o Khospuri, Tq.Nagar, Dist. Ahmednagar. 2. Arjun Namdeo Avhad, Age major, Occ.Agriculturist, R/o Khospuri, Tal. Nagar, Dist. Ahmednagar. ... Appellants. Versus The State of Maharashtra ... Respondent. Mr.V.S.Bedre, advocate for the appellants. Mrs.V.A.More, A.G.P. for the State. ... CORAM : V.R.KINGAONKAR,J. Date : 27.11.2009. ORAL JUDGMENT : 1. Both these appeals are being decided together inasmuch as they arise out of the judgments rendered by Civil Judge (S.D.), Ahmednagar in two separate Land Acquisition Reference case Nos.34 and 35 of 1988 in respect of agricultural lands acquired by the Respondent - State for same project, namely, construction of a percolation tank. 2. There is no dispute about the fact that the appellants of First Appeal No.498/1993 were the joint owners of an agricultural land bearing 3 Gat No.2/C, admeasuring 3 hectares 98 Ares and the appellants in First Appeal No.499/1993 were owners of lands bearing Gat No.2/B, admeasuring 41 Ares and Gat No.122 admeasuring 0.10 Ares. These lands were situated at village Khospuri under Taluka and District Ahmednagar. Indisputably, notification U/s 4(1) of the Land Acquisition Act, was issued on 3.1.1984. The above referred lands were acquired for the public purpose in pursuance to the notification. Some other lands from the vicinity were also acquired by the Respondent - State likewise the above referred lands. It appears that the Special Land Acquisition Officer divided the acquired lands in three categories on the basis of availability of irrigation facility. He held that the owners of irrigated agricultural lands were entitled to receive compensation at rate of Rs.9,000/- (Rupees Nine thousand) per hectare, the owners of semi irrigated lands were entitled to receive compensation at the rate of Rs.7,500/- (Rupees seven thousand five hundred) per hectare and owners of the dry lands were entitled to receive compensation at rate of Rs.6,000/- (Rupees six 4 thousand) per hectare. 3. The appellants were dissatisfied with the quantum of compensation awarded to them. They accepted the compensation under protest. They filed Reference Applications which were forwarded to the Civil Court. The appellants contended that the acquired lands were of much more market value than the compensation awarded to them. They sought compensation at the rate of Rs.50,000/- (Rupees fifty thousand) per acre for irrigated lands and Rs.10,000/- (Rupees ten thousand) per acre for dry lands. 4. The Respondent - State resisted the Reference Applications. It was contended that the compensation paid to the claimants was proper and in keeping with reasonable market value of the acquired lands. The Respondent - State submitted that comparable sale instances were duly considered by the SLAO while determining the market value of the acquired lands. It was further submitted that the lands were properly classified into three (3) categories as per the 5 availability of irrigation facility. The Respondent-State sought dismissal of the Reference Applications. 5. The parties went to trial on certain issues framed by the Civil Court. The learned Civil Judge held that acquired land bearing Gat No.2/C is the irrigated land, whereas the other two lands were the try lands. The learned Civil Judge came to the conclusion that the market value of the irrigated land was Rs.16,500/- per hectare, whereas that of the dry lands was Rs. 11,000/- per hectare. The learned Civil Judge accordingly directed enhancement of the compensation amount. 6. Feeling aggrieved, the appellants have come up in appeals. They would submit that the market value of the acquired lands was much more. It is contended that the comparable sale instances as indicated in the copies of the index (Exh.11 and Exh.12) were not properly appreciated by the Civil Court. 6 7. Heard learned counsel for the parties. 8. Questions involved in these appeals are as follows : "(i) Whether in the facts and circumstances of the present case, the Reference Court committed patent error while discarding the entries in the index Registers (Exh.11 and Exh.12) and the same ought to have been duly appreciated in view of Section 51-A of the Land Acquisition Act.? (ii) Whether in the facts and circumstances of the present case, the Civil Court committed patent error while fixing the market rate of the acquired lands at Rs.16,500/- (Rupees sixteen thousand five hundred) per hectare for irrigated land and for Rs.11,000/- (Rupees eleven thousand) per hectare for dry 7 lands.?" 8. The appellants relied upon sale instances which are reflected from copies of index Register (Exh.11 and Exh.12). The question is whether the entries in the index Register could be per se relied upon as comparable sale instances. Mr.Bedre, learned advocate seeks to rely on certain observations in this context, in "Osman Khan Abdul Majid Khan and another Vs. State of Maharashtra" 1994 Mh.L.J.1103. This Court observed that copy of sale deed as sale instance could be read in evidence as provided U/s 51A of the Land Acquisition Act, 1894. As against this, learned A.G.P. Smt.V.A.More, invited my attention to the observations in "G.Narayan Rao Vs. The Land Acquisition Officer and others" 1997 (1) Mah.L.R. 266 (SC). A Division Bench of the Apex Court held that the Court can not rely upon untested sale deeds to determine the market value. It is observed that sale deed should be proved by examining either the vendor or the vendee. The appellants did not examine either vendor or vendee of the 8 transactions of sale which are shown in the copies of the index register Exh.11 and Exh.12). These documents may be admitted in evidence as provided U/s 51A of the Land Acquisition Act. Still, however, whether the transactions are of genuine nature or the value of the properties shown in the sale instances is exceptional one is required to be proved by examination of the vendor or vendee. Moreover, these are not the copies of sale deeds. For want of copies of the sale deeds, one is unable to gather whether more price was paid by purchaser, over and above the market price, due to certain exigency or special circumstances. 9. The appellants relied upon copy of sale deed dated 28.2.1984. It is only a xerox copy. The vendors by name Ganpat Ramji Bhawar and Renuknath Ramji Bhawar or the purchaser by name Gulabrao were not examined. Moreover, the sale instance is post notification document. Therefore, it can not be regarded as a comparable sale instance. The appellants also relied upon copy of sale deed (Exh.10) which shows that a 9 small fragment of land which was undivided 1/4th share along with right to draw water was alienated by one Pandurang Maroti Harer for consideration of Rs.15,000/- (Rupees fifteen thousand). As stated earlier, the vendors or vendees were not examined in either of the sale instances. 10. It is pertinent to note that PW Sonabai was examined in order to prove sale transaction in respect of land Gat No.1041 consisting of 6 Ares. PW Sonabai admits unequivocally that she sold the share in the well water. She admitted that 6 Ares land was purchased by the vendee only with a view to have water source of the well which is having plenty of water. The strip of land sold is of only 6 Ares and the main intention of purchaser was to get adequate irrigation facilities for his another land. Apart from this, an agreement of sale was relied upon by the appellant. The learned Civil Judge held that the agreement of sale was of the year 1974 and could not be considered for the purpose of comparison so as to determine the market value 10 of the acquired lands. Another sale instance (Exh.11) was in respect of land situated at village Wanjoli. The said land is away from the acquired lands. As stated earlier, the sale instance was of post notification period and, therefore, could not be relied upon as comparable sale instance. 11. Mr.Bedre, learned advocate would submit that the impugned judgments are not as per the standard laid down by the Apex Court in "Krishi Utpadan Mandi Samiti Sahaswan, District Badaun through its Secretary Vs. Bipin Kumar and another" (2004) 2 Supreme Court Cases 283. He would submit that escalation of the market rate at the rate of 15% of every subsequent year up till date of acquisition could be permissible. He also invited my attention to certain observations in "Rishi Pal Singh and others Vs. Meerut Development Authority and another" (2006) 3 Supreme Court Cases 205. The Apex Court held that the exemplars of small plots can be taken into consideration when other relevant material is not available, provided adequate discount is 11 given in that behalf. With great respect, this authority, is of no much assistance to the appellants. For, other sale instances are available for the purpose of due comparison in the present case. The learned Civil Judge has duly considered such material. 12. The learned Civil Judge, has held that the higher compensation could be received and payable. The comparison of sale instances and other circumstances have been duly taken into account while holding that the irrigated lands could have fetched market value at the rate of Rs.16,500/- (Rupees sixteen thousand five hundred) per hectare and the dry lands could have fetched market value of Rs.11,000/- (Rupees eleven thousand) per hectare, at the time of acquisition of the lands in question. The Court is required to consider juxtaposition of the market price which a willing buyer is likely to offer. The prices may appear to be on lower side at the time of consideration of these appeals. However, the prevailing prices in the month of January 1984 were required to be considered by 12 the Reference Court. The findings of the Reference Court are based on material placed on record. There appears no element of arbitrariness or perversity in the findings rendered by the Reference Court. Considering these aspects, I do not find any merit in the appeals. 13. In the result, both the appeals are dismissed. No costs. (V.R.KINGAONKAR,J.) asp/office/fa49893