1 First Appeal No. 253.94 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 253 OF 1994 Seema W/o Sarjerao Age 23 years, Occup.Agril., R/o Tirthpuri,Tq.Ambad, District Jalna, at present Pune Through her power of attroeny holder Shri Vithalrao Rajaram Udhan, Age 73 years,Occup.Agril., R/o Tirthpuri,Tq.Ghansavangi, District Jalna. .. .. Appellant Versus 1. State of Maharashtra, Through Collector,Dist.Jalna. 2. The Collector, Jalna, District Jalna. .. .. Respondents ..... Mrs.C.S.Deshmukh,Advocate holding for Shri.S.P.Deshmukh,Advocate for Appellant. Shri K.M.Suryawanshi, AGP for the Respondents. ..... CORAM : K. K. TATED, J. DATE : 15TH DECEMBER, 2010. 2 First Appeal No. 253.94 JUDGMENT : . This Appeal is preferred by the Appellant-original claimant against the Judgment and Award dated 18 th November 1992, passed by the Civil Judge (Senior Division), Jalna, in Land Acquisition Reference No. 21 of 1988. The Reference Court dismissed the appellant's Reference Under Section 18 of the Land Acquisition Act, on two grounds i. e. the appellant failed to produce any evidence to show that she is entitled for enhanced compensation and another Reference application filed by the appellant Under section 18 of the Land Acquisition Act was barred by limitation. FEW FACTS OF THE MATTER ARE AS UNDER: 2. The Special Land Acquisition Officer (Hereinafter referred to as “SLAO” for the sake of brevity) issued notification under section 4 of the Land Acquisition Act (Hereinafter referred to as “the Act” for the sake of brevity), dated 12 th November 1972 3 First Appeal No. 253.94 for acquiring appellant's land ad measuring 4H.6Ars out of Survey No. 259 equivalent to Gut No. 604 situated at village TirthPuri, Tq. Ambad, District Jalna, for the purpose of rehabilitation of the project affected persons at village Teerthpuri. Thereafter, Notification Under section 6 of the Act was issued on 16 th October, 1975. After following due procedure of law, the SLAO declared the Award dated 23 rd September, 1986 and awarded compensation of acquired land at the rate of Rs. 5000/- per Hector. 3. Being aggrieved by the Award passed by the Land Acquisition Officer, the appellant preferred Reference Under Section 18 of the Act, on the ground that the land Acquisition Officer failed to consider the sale deeds of the adjoining land holders, which clearly show the market price of land to be more than Rs. 30,000/- Per Hector. The land is black soil and irrigated by the canal. The SLAO did not take into 4 First Appeal No. 253.94 consideration the quality of the land. He failed to fix the adequate market price of the acquired land. The SLAO failed to consider the potentiality of the land. In the said Reference respondent State of Maharashtra filed, its Written Statement dated 09 th February, 1990 opposing reference on several grounds including the ground of limitation. The respondents in its Written Statement stated that Award has been passed on 23 rd September, 1986 and appellant accepted compensation on 05 th November, 1986 and thereafter they filed Reference beyond the period of limitation. 4. The appellant - original claimant examined P.W.1 Vitthalrao Rajaram Udhan [Exh.30], her father and P.W.2- Dattatrya Rajaba Tarde [Exh.36] Clerk from the Sub-Registrar’s Office Ambad, in support of the claim. The respondent-State also examined Wamanrao Ananatrao Dabhade [Exh.40]. 5 First Appeal No. 253.94 5. After considering oral and documentary evidence on record, reference Court held that appellant-Original claimant received compensation on 05 th November, 1986 and thereafter she filed Reference under Section 18 of the Act, on 21 April, 1988, therefore same was barred by limitation. On this ground the Reference Court rejected Reference filed by the Appellant. 6. Being aggrieved by the Judgment and Award passed by the Reference Court, dated 18 th November, 1992, the appellant- Original claimant preferred above mentioned Appeal. 7. Smt. Deshmukh, learned counsel appearing for the appellant submits that Reference Court erred in coming to the conclusion that the appellant filed Reference Under Section 18 of the Land Acquisition Act, beyond limitation period. She submits that Reference Court erroneously taken the date of letter written by the SLAO to the Civil Judge Senior Division, Jalna forwarding 6 First Appeal No. 253.94 Reference of the appellant. She submits that SLAO Jalna by his letter dated 21 st April, 1988 forwarded appellant’s Reference under section 18 of the said Act to the Civil Judge Senior Division, Jalna. The Reference Court considered the date of this letter as date of filing Reference Under Section 18 of the Act and held that appellant filed Reference Under Section 18 of the Act beyond period of limitation. She submits that Reference Application bears date 2 nd December, 1986. She further submits that along with Reference Application, appellant paid requisite Court fees. Those Court fees Stamp papers also bear date 2 nd December, 1986. 8. The learned counsel further pointed out that Advocate who filed Reference under section 18 of the Act, on behalf of appellant filed his Vakalatnama, which is at Exh.2. Said Vakalatnama also bears date 2 nd December, 1986. These facts are not considered by the Reference Court at the time of deciding 7 First Appeal No. 253.94 limitation point. 9. The learned counsel further submits that the Reference Court has failed to appreciate potently of development of land in the vicinity of village Tirthpuri, which is admittedly fastest developing town. She further submits that Reference Court erred in discarding the certificate issued by the Competent Authority at Exh.31 showing that the land is being irrigated by the Jayakwadi canal. She further submits that Reference Court as well as SLAO erred in treating the land as dry land without considering the potentiality 10. The learned counsel appearing on behalf of the appellant further submits that land of the appellant’s father, which was declared along with appellant’s land as intended to be acquired under the same notification and falling under the same category NO.3 (Dry Land) have been awarded much higher value. Both 8 First Appeal No. 253.94 the lands are situated in the same village Tirthpuri. She further submits that compensation awarded in respect of land Survey No.146 bearing Gut No. 330 of village Tirthpuri belonging to the appellant’s father which was categorized as dry land, has been awarded compensation at the rate of Rs. 31,000/- per Hector. The appellant’s land as well as appellant’s father land are acquired by one and same notification under section 4 of the Act. 11. Smt.. Deshmukh, learned counsel appearing on behalf of the appellant, on the basis of all the above submissions, submits that Judgment and Award passed by the Reference Court is liable to be set aside and it should be held that appellant is entitled to compensation in respect of the acquired land as demanded in Reference Application Under section 18 of the Act. 12. On the other hand, learned AGP appearing on behalf of respondent-State submits that the appellant original claimant 9 First Appeal No. 253.94 failed to produce any cogent evidence on record to show that she is entitled to enhanced compensation in respect of the acquired land. He submits that SLAO considered several sale instances for the year 1969 and 1970 and taking into consideration the sale instances dated 04 th April, 1970 and after going through the Index-II for two years decided the market value of the land at the rate of Rs. 5000/- Per Hector. He submits that the appellant neither produced any cogent evidence on record to show that market value of the acquired land as on the date of issuance of notification under section 4 of the Act, nor filed any claim petition before the SLAO pursuant to the notice under section 9 (3) of the Act. 13. He further submits that the appellant examined two witnesses in support of her contention, but she failed to produce any documentary evidence to show additional market value of the acquired land as on the date of notification under section 4 of the 10 First Appeal No. 253.94 Act, dated 12 th November, 1972. He submits that respondents examined one Mr. Wamangrao Anantrao Dabhade, who specifically stated in his evidence that the appellant failed to claim any specific amount of compensation before the SLAO. The said witness i. e. SLAO categorically stated in his evidence that while passing the award, he referred to previous three years sale transactions, highest sale transactions for Rs.3727/-Per Hector. Considering two years gap between the date of sale transaction and the date of notification under section 4 of the said Act, he awarded compensation in respect of acquired land at the rate of Rs. 5000/- per Hector. On the basis of these submissions learned AGP submits that there is no substance in the present appeal and the same is liable to be dismissed with costs. 14. I have gone through the record and proceedings of the present case. After going through the pleadings of the matter, 11 First Appeal No. 253.94 two points arise in this appeal for consideration: (i) Whether Reference Application filed by the appellant-Original claimant under section 18 of the Act was barred by limitation? (ii)Whether the appellant-original claimant is entitled to additional compensation in respect of acquired land over and above awarded by the SLAO by award dated 23 rd September, 2010? 15. For considering the point No.1 about limitation, it is necessary to scrutinize Exhibit A minutely i.e. Reference Application filed by the appellant under section 18 of the Act. Bare reading of the said application shows that same is dated 2 nd December, 1986. Even Vakalatnama filed by the appellant’s Advocate along with Reference Application under section 18 of the Act is also dated 2 nd December, 1986. On the said Vakalatnama, there is endorsement from the office of SLAO dated 3 rd December, 1986. There is one more document dated 3 rd 12 First Appeal No. 253.94 December, 1986, i.e. application filed by the appellant’s Advocate along with Reference Application in the office of SLAO Jalna. In this application, the appellant-applicant stated that applicant applied for copy of Award, but the same was not received by the appellant-applicant and therefore, applicant filed Reference Application without copy of Award. There is endorsement on this application from the office of Respondent dated 3 rd December, 1986. All these documents clearly show that, appellant filed Reference Under Section 18 of the Act in the office of SLAO on 2 nd December, 1986. 16. In the present application, admittedly, there is no evidence produced on record by the Respondent State about the service of notice under section 12 (2) of the Act. Therefore, limitation for filing Reference Under Section 18 of the Land Acquisition Act will start from the date of passing of the Award. Admittedly, as appellant-Original claimant received payment of 13 First Appeal No. 253.94 compensation on 5 th November, 1986, the limitation will start from that date for filing Reference under Section 18 of the Act. The appellant filed Reference on 2 nd December, 1986 i.e. within 42 days from the knowledge of Award. The Reference Court considered the date of filing Reference under section 18 of the Act, date appearing on the letter of SLAO forwarding the Reference Application. Therefore, the Reference Court held that the appellant filed Reference on 21 st April, 1988, but that is not correct. Considering the documents as pointed out by the learned counsel appearing on behalf of the appellant i. e. Court Fees stamp paper Exh. 1-Application of Reference under Section 18 of the Act, Vakalatnama of the advocate of appellant at the time of filing Reference clearly show that Reference filed by the appellant was within period of limitation. Therefore, I hold that Reference Application filed by the Appellant-Original claimant i.e. Exh.1 was within period of limitation. 14 First Appeal No. 253.94 17. Second point for consideration is about the market value of the acquired land. Admittedly, appellant has not produced a single sale instance from the village Tirthpuri, where the acquired land is situated. The applicant herself did not enter into witness box. On her behalf, her father Vitthal Rajaram Udhan entered into witness box. In his evidence he stated that, acquired land was situated at a distance of ½ K.M., from village Tirthpuri, it was black soil land. There was road going towards Ambad. He stated in his evidence that at Tirthpuri power House, Sub market Yard and Ginning and Pressing Factory were located at the time. He further stated in his evidence that there was proposal for establishing sugar factory and yarn mill at village Tirthpuri. 18. Even, P.W.2 Dattatrya Bajaba Tarde, clerk from the office of Sub-Registrar Ambad stated that price of the lands situated at village Tirthpuri falling under Group-3. The price of 15 First Appeal No. 253.94 the land falls under Group-3 was Rs. 31,000/- per Hector for dry land. Apart from these two witnesses, claimant relied on the decision in the land Acquisition Reference No. 46 of 1990. In the Land Acquisition Reference No. 46 of 1990, lands situated at village Gowardhan, Tq. Majalgaon, District Beed acquired for the purpose of construction for re gradation of bridge of distributory at Nasanabad and Govardhan (H) Taluka Majalgaon. P.W.1- Vitthalrao Udhan stated in his evidence that distance between village Gowardhan and Tirthpuri is more than 30 K.M. Therefore, decision in LAR No. 46 of 1990 is not useful to the appellant for claiming enhanced compensation. 19. The learned counsel appearing on behalf of appellant, in support of her submission relied on the Judgment of the Apex Court in the matter of General Manager, Oil and Natural Gas Corporation Ltd Vs. Rameshbhai Jivanbhai Patel and 16 First Appeal No. 253.94 another reported in 2008 AIR SCW 5947. In that case the Apex Court held that for determining compensation Award passed in respect of the land in adjoining village can be considered, if there is close proximity between two lands. In para No.7 of the Judgment, the Apex Court stated that the boundaries of villages Kasalpura and Modipura are adjacent to the acquired land. In the present case the distance between village Gowardhan and Tirthpuri is more than 30 K.M. 21. The learned Counsel appearing on behalf of the appellant at the time of hearing produced on record the Judgment in the matter of Vithal Rajaram Udhan Vs. State of Maharashtra and another in Land Acquisition Reference No. 28 of 1988 decided by the Joint Civil Judge (Senior Division), Jalna on 22 nd April, 1992. By consent same is taken on record and marked as X for identification. In that case, area 12H.12 Ares of block No. 330 belonging to claimant’s land situated at village Tirthpuri, 17 First Appeal No. 253.94 Tq. Ambad, District Jalana acquired by the Government for rehabilitation of Project affected persons. Notification under section 4 of the Land Acquisition Act was issued on 12 nd November, 1972 and the Special Land Acquisition Officer passed Award on 23 rd September, 1986. Notification in the present case as well as in that case i. e. Land Acquisition Reference No. 28 of 1988 is common. By the same notification and by same Award land was acquired for the same project. Claimant in that Award also filed Reference Under Section 18 of the Act for enhance compensation. In that case, Reference Court by its Judgment and Award dated 22 nd April, 1992 awarded compensation in respect of the acquired land at the rate of Rs. 31,000/- per Hector. 22. Our High Court in the matter of Bayaji Tatya Kalunge Vs. State of Maharashtra reported in 2007(2) ALL MR 316 held that land situated in the same village acquired for same purpose under same notification then the claimants are entitled to compensation at the rate same rate on the ground of parity. 18 First Appeal No. 253.94 Head Note reads as under: “ Land Acquisition Act (1894), Ss. 4(1), 18-Acquisition of land-Claim of Compensation - Parity- Lands situated in same village, acquired for same purpose under same notification- claimants are entitled to compensation at the same rate on ground parity.” 23. Similar view has been taken by the Apex Court in the matter of Union of India Vs. Bal Ram and another reported in AIR 2004 Supreme Court, 3981. Therefore, considering the Judgment and Award passed by the Joint Civil Judge (Senior Division) Jalgaon in Land Acquisition Reference No. 28 of 1988 dated 22 nd April, 1992, I hold that the appellant is entitled to compensation in respect of acquired land at the rate of Rs. 31,000/- Per Hector along with statutory benefits as per amended provisions of Land Acquisition Act. 19 First Appeal No. 253.94 24. It is to be noted that when query was made to the learned AGP appearing on behalf of respondent-State when asked “whether the State has challenged the Judgment and Award dated 22 nd April, 1992, passed by the Reference Court in LAR No. 28 of 1988, he express his inability to state in this respect for want of knowledge. 25. In view of the above mentioned facts and circumstances, following order: ORDER (a) Appeal is allowed. (b) Appellant is entitled to compensation in respect of acquired land at the rate of Rs.31,000/-(Rupees Thirty One Thousand) per Hector. (c) The appellant is entitled to 20 First Appeal No. 253.94 statutory benefits as per the amended provision of Land Acquisition Act. (d) In the facts and circumstances of the case no order as to costs. Sd/- [K. K. TATED, J.] MTK.