1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD FIRST APPEAL NO.64 OF 1996 Allabaksha s/o Maulana, age 60 years, occupation agril. r/o Pala, Tq.Mukhed, District Nanded, through G.P.A. Sk. Ahmed s/o Sk. Allabaksha, age 32 years, r/of as above,occup.service, through his L. R. as follows Sk. Ahmed Sk.Allabaksha, age 42 years, occup.service, Appellant/L.R. r/of Degloor, Tq. Degloor, of original District Nanded. claimant. versus 1. The State of Maharashtra, through Collector, Nanded. 2. The Special Land Acquisition Respondents/ Officer, PT and MIW, Nanded. Orig. Resps. ------------------------------------------------------ Shri M.M.Patil Beedkar, Advocate, for appellant. Smt. R.K. Ladda, A.G.P. for the Respondents. ------------------------------------------------------ 2 Coram : P.R. Borkar, J. Date : April 22, 2010 ORAL JUDGMENT 01. This first appeal is preferred by the original claimant who is not satisfied with market rate of Rs. 10,000/= per hectare awarded for acquisition of his 1 hectare 62 R. land out of survey Nos. 37/4/2 and 37/4/3 situated at village Tupdal, Taluka Mukhed by learned Additional District Judge, Biloli, in L.A.R. No.41 of 1993 decided on 20.5.1995. 02. It is no more disputed that the lands were acquired for Jamkhed Medium Project. Notification under Section 4 of the Land Acquisition was published on 25.12.1985 and the award was passed by the Land Acquisition Officer on 19.12.1988. Land Acquisition Officer treated the land of the appellant as dry land falling in "Group B" and awarded compensation at Rs. 7500/= per hectare. On reference under Section 18 of the Land Acquisition Act, the Reference Court increased compensation to Rs.10,000/= per hectare and being aggrieved thereby, present appeal is filed. 3 03. Heard learned counsel for respective parties. 04. In this case, the appellant has examined himself at Exh.31 and relied upon certified copies of five sale deeds as comparable instances. The trial court observed that so far as sale deeds at Exhibits 39 and 40 are concerned, it is not proved that the lands involved in those sale deeds were comparable with acquired lands. In his deposition at Exhibit 31, appellant Allabaksha referred to only two sale deeds at Exhibits 28 and 29. He even did not say anything about sale deed, the copy of which is at Exh.30. No witness is examined to prove that the lands involved in sale deeds at Exhibits 30,39 and 40 were comparable with the acquired lands. 05. So far as sale deed dated 27.12.1984 at Exhibit 30 is concerned, the same is in respect small piece of 3 R land from village yeoti. It was sold for Rs.1500/=. So, the sale instance is from different village. The sale deed at Exhibit 39 is in respect of 61 R land from village Chadola Taluka Mukhed. Sale deed is dated 12.6.1986. Sale deed at Exhibit 40 is in respect of land of village Dhamangaon, Taluka Mukhed 4 Sale deed is dated 5.6.1986 and 59 R. land is sold for Rs.17,000/=. So, the lands involved in sale deeds at Exhibits 30, 39 and 40 are not from village Tupdal or village Hasnal from where lands were acquired for the project. We, therefore, cannot consider those sale deeds in absence of proof to show that those are instances of comparable lands. 06. So far as sale deed at Exhibit 28 is concerned, the same is dated 27.12.1984. Land admeasuring 3 R from village Yeoti Taluka Mukhed was sold for Rs.1500/=. The appellant in his cross examination admitted that the land sold under sale deed Exh.28 was purchased by one Govind since it was adjacent to the land of Govind. He stated that the land purchased by Govind was irrigated land. In next breath, appellant admitted that his land was dry land. He further admitted that there was competition for purchasing the land under sale deed Exh.28 and, therefore, Govind purchased the same at that rate. Thus, he admitted that the purchaser had paid higher price for the land since it was advantageously located for him. It, therefore, cannot be said to be land of comparable instance with acquired lands. Moreover, land purchased by Govind was a small piece of land and 5 it was irrigated land. 07. So far as acquired land is concerned, the appellant Allabaksha stated in his evidence that in 1984, the costs of his land was Rs.20,000/= per acre. He used to get income of Rs.5000/= per acre from the said land. River was passing by the side of his land. He was taking crops, such as, wheat, chilly and cotton. It is rightly argued by learned A.G.P. that if really such irrigated crops were taken in the land before the same was acquired, the appellant ought to have produced record of rights to show crops he had taken in the said lands. No other witness is examined. In cross examination, the appellant admitted that he did not know any sale instance of 1984 from village Tupdal in which rate of Rs.20,000/= per acre was paid. He categorically admitted that his land is dry land. He also stated that he had brought oil engine from Govind for supply of water from river to his land. However, except interested word of the appellant, there is no evidence in that respect available on record. The trial court did not believe that the land of the appellant was irrigated. It is not the case of the appellant that his land was irrigated by well water. No doubt, it is claimed in 6 the reference application that there is a well in the land acquired by the State Govt. and issue to that effect was also framed by the trial court which was answered in the negative. Therefore, theory of land of appellant being irrigated by river water is afterthought. 08. That takes us to the last instance of sale deed dated 24.2.1984 at Exhibit 29, which is from village Hasnal, Taluka Mukhed. The Award itself shows that the lands from villages Hasnal, Tupdal, Gondi and Pali were acquired for the project. So, lands of village Hasnal can be taken into consideration. The appellant in his deposition did state that the land sold by sale deed Exhibit 29 was of lower quality than than his own land. Even if we hold that this is an exaggeration, Sale Deed Exh.29 shows that it must be of dry land. Exhibit 29, therefore, could be considered as comparable instance. It is in respect of 81 R land sold for Rs.16500/=. From the sale deed Exh.29, it does not appear that there was special advantage, such as, well or any structure in the land. Therefore, Rs.20,000/= per hectare can be considered as prevailing market rate at the relevant time. 7 09. In the circumstances, this first appeal is allowed partly. The judgment and award passed by the trial court is modified and it is directed that the appellant shall be entitled to compensation at the rate of Rs.20,000/= per hectare in stead of Rs. 10,000/= per hectare. The appellant would be entitled to solatium, additional 12 per cent component as per Section 23 (1A) of the Land Acquisition Act and interest as awarded by the trial court on the enhanced amount. Appeal is accordingly, disposed of. pnd/fa64.96 (P.R.BORKAR, J.)