1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO. 10 OF 1995 Bhaskar s/o Rustumrao Mohite, Aged: 45 years, Occ: Service and Agril., R/o. Hatnoor, Tq. Kannad, Dist.Aurangabad, Presently residing at Shahakar Bank Colony, New Osmanpura, Shahnoorwadi, Plot No.10, Aurangabad. .. Appellant Versus The State of Maharashtra. .. Respondent Mr.Manish Nawandar, Advocate for appellant. Mr. M.L. Dharashive, A.G.P. for respondent. CORAM : K.K. TATED, J. DATE :18th JUNE, 2009. ORAL JUDGMENT : 1. Heard learned Counsel appearing on behalf of the appellant and learned A.G.P. for the respondent - State of Maharashtra. 2 2. In the present first appeal, the appellant - original claimant challenged the judgment and award passed by Extra Joint District Judge, Aurangabad dated 10-08-1993 in L.A.R. No. 46/1987. The Reference Court by impugned judgment and award dismissed the appellant's Land Acquisition proceedings. A few undisputed facts in the present case are that the S.L.A.O. issued notification dated 03-06-1983 for acquiring the appellant - original claimant's land admeasuring 1 Hectors 21 Ares for extension of Gaothan of village Hatnoor, Taluka Kannad District Aurangabad. Thereafter, the appellant filed his objection on 03-01-1984 under Section 5(1) of the Land Acquisition Act. After following due process of law, the S.L.A.O. issued notification dated 14-11-1985 under Section 6 of the said said Act. Notices under Section 9(1) and (2) were published on conspicuous place at Hatnoor through Tahasildar, Kannad and also served individual notices under 3 Section 9(3) and 9(4) of the said Act on interested persons. Pursuant to the notices under Section 9(3) and 9(4) of the Land Acquisition Act, the appellant - original claimant filed claim before the Land Acquisition Officer stating that market value of land under acquisition was Rs. 40,000/- per Acre. So, he should get Rs. 1,20,000/- for three acres of land under acquisition. The appellant also claimed a sum of Rs. 50,000/- for Godown and Rs. 25,000/- for bunding work. After following due process of law, the S.L.A.O. declared award dated 14-08-1986 and awarded compensation of Rs. 10,890/- in respect of 1 Hector 21 Ares land @ Rs. 9000/- per Hector. The S.L.A.O. also awarded solatium under Section 23(2) of the L.A. Act @ 30% on market value of the land i.e. Rs. 3267/-. In all, the S.L.A.O. awarded compensation in respect of acquired land to the tune of Rs. 14,157/-. 4 3. Being aggrieved by the said award passed by the S.L.A.O. on 14-08-1986, the appellant preferred Reference under Section 18 of the Land Acquisition Act dated 13-10-1986 claiming compensation in respect of acquired land @ Rs. 25,000/- per Acre. He further stated in the said Reference under Section 18 of the L.A. Act that he is having half share in the acquired land i. e. half share of 1 Hector 21 R, it comes to 60.05 R. Said Reference under Section 18 of the L.A. Act was transfered to Joint District Judge at Aurangabad and after hearing both the sides, Extra Joint District Judge, Aurangabad by judgment and award dated 10-08-1993 dismissed the said reference on the ground that the compensation awarded by the S.L.A.O. is as per prevailing market rate of land on the date of issuance of notification under section 4 i. e. 03-06-1983. 4. Learned Counsel appearing on behalf of the 5 appellant submitted that the Reference Court erred in coming to the conclusion that the appellant failed to produce cogent evidence to show that he was entitled to enhanced compensation in respect of the acquired land. He submitted that the Reference Court committed error in not awarding compensation in respect of the acquired land @ Rs. 25,000/- per acre. He further submitted that the Reference Court failed to consider Exhibit-17 and 18 which were sale deeds for Rs.4000/- and Rs.6000/- for 2 Ares land of adjacent land at the time of fixing market value of the acquired land. Learned Counsel appearing on behalf of the appellant - original claimant further submitted that the Reference Court did not properly and correctly considered the deposition of witness P.W.1 who deposed that value of land was Rs.35,000/- to Rs.45,000/- per Acre. It is the contention of learned Counsel appearing on behalf of the appellant that the Reference Court has failed to 6 consider that the land was highly valuable adjacent to the Gaothan and therefore, compensation claim in full should have been granted. On the basis of these submissions, learned Counsel appearing on behalf of the appellant submitted that the appellant is entitled to enhanced compensation in respect of the acquired land. He further submitted that in the present case, though the appellant is entitled to the enhanced compensation in respect of the acquired land, the appellant restricted his claim to Rs. 29,555/- and paid court fees accordingly. 5. On the other hand, learned A.G.P. appearing on behalf of the respondent vehemently opposed the present first appeal on the ground that the appellant failed to produce any cogent evidence to show that he was entitled to additional compensation in respect of the acquired land. Learned A.G.P. further submitted that the sale 7 deeds produced by the appellant on record at Exhibit 16,17 and 18 were in respect of 2 Ares land and therefore, same could not be compared for fixing market value of the acquired land of the area of 1 Hector and 21 Ares. He further submitted that all these sale deeds at Exhibit-16, 17 and 18 were post notification sale deeds. In the present case, notification under Section 4 of the L.A. Act, issued by Land Acquisition Officer on 03-06-1983 whereas the sale deeds were of the year 1985, 1986 and 1989. On these grounds also, learned A.G.P. appearing on behalf of the respondent submitted that the Reference Court rightly rejected those sale deeds. He further submitted that the appellant failed to examine any witness to prove the contents of those sale deeds. On this ground also, those sale deeds could not be considered for fixing market value of the acquired land. He further submitted that the Reference Court rightly held that the land under acquisition was 8 dry and medium land because 7/12 extract produced by the appellant himself showed that the appellant used to take Jawar, Tur, Cotton crops. On the basis of these submissions, learned A.G.P. appearing on behalf of the respondent - State submitted that there was no substance in the present first appeal preferred by original claimant and same was liable to be dismissed with costs. 6. On the above mentioned submissions advanced by learned Counsel appearing on behalf of the appellant as well as by learned A.G.P. appearing on behalf of the respondent - State, point for consideration arises in the present first appeal is that : "Whether the appellant is entitled to enhanced compensation in respect of the acquired land.? 7. With the assistance of both the Counsel, I have gone through the Record and Proceedings of the above mentioned matter. Learned Counsel 9 appearing on behalf of the appellant submitted that the respondent acquired his land for the purpose of extension of Gaothan, itself shows that the land was having high potentiality for other than agricultural activities also. He further pointed out that the village school was situated next to the acquired land. He pointed out that from copy of Award passed by the Land Acquisition Officer dated 14-08-1986 in which Land Acquisition Officer himself described the situation of the land as under. DESCRIPTION AND SITUATION OF LAND: The land under acquisition is from Gat No. 8 admeasuring total area 6.25, assessment Rs. 38.19, land under acquisition is adjacent to the existing Gaothan of Village Hatnoor behind the School, accessible by a approach road. It was also pointed out that land was irrigated through lift irrigation but which was also stopped since last four years. Land is dry and medium type and jowar crop was standing at the time of spot inspection. 10 8. Learned Counsel appearing on behalf of the appellant further pointed out from evidence of P.W.1 at Exhibit - 22 that land was having high potentiality like Bagayat. He pointed out that P.W.1 specifically stated in his evidence that initially he used to take sugar cane crops. Thereafter, for want of sufficient water, he started taking two crops in a year. This itself shows that acquired land was having high potentiality. He further pointed out that the sale deeds at Exhibit-16, 17 and 18 were in respect of small plots of land and same could be considered for fixing market value of the acquired land by deducting reasonable amount due to the lesser area of the land sold by those sale deeds. He pointed out that lands involved in the sale deeds at Exhibit-16, 17 and 18 are adjacent to the acquired land and these lands were sold @ Rs. 2000/- per Are i. e. Rs. 2,00,000/- per Hector. It is not possible to accept submissions of learned Counsel appearing 11 on behalf of the appellant that for fixing market value of the acquired land, sale deeds at Exhibit-16, 17 and 18 can be considered as it is. Sale deed at Exhibit-18 is dated 15-11-1989 i. e. six years after issuance of notification under Section 4 of the L.A. Act. Therefore, sale deed Exhibit-18 cannot be considered for fixing market value of the acquired land. Sale deed at Exhibit-17 is dated 07-11-1985. But, in this sale deed, it is specifically stated that 2 Ares of land was sold for Rs. 4000/- along with well. Therefore, this sale deed also is not comparable sale deed in respect of the acquired land. Sale deed at Exhibit-16 is dated 28-11-1986. In this sale deed, land adjacent to acquired land was sold @ Rs. 2,00,000/- per Hector i. e. Rs.2000/- per Are. Though sale deed at Exhibit-16 is of 1986 same can be considered by deducting 10% per year, as held by our High Court in the matter of Goa Housing Board & Another vs. Attorney of Communidade of 12 Mapursa reported in 2008(1) B.C.R. 356. 9. Learned A.G.P. vehemently opposed for considering sale deed at Exhibit-16 for fixing market value of the acquired land. He submitted that the land involved in this sale deed was only of 2 Ares whereas the acquired lands was 1 Hector and 21 Ares i. e. 121 Ares. Therefore, learned A.G.P. submitted that some deduction was required for arriving at the market value of the land on the date of notification under Section 4 of the L.A. Act. It is to be noted that in the matter of State of Maharashtra and another vs. Valu Yesu Suryavanshi (Nhavi) reported in 2008(4), Mh.L.J. 626 and in the matter of Lucknow Development Authority vs. Krishna Gopal Lahoti and others, reported in 2008(1) S.C.C. 554 held that some deduction was necessary to consider the small plots of land for fixing market value of large tract of land. It is to be noted that the Court has to consider 13 market value of the acquired land on the date of issuance of notification under Section 4 of the L.A. Act in consonance with statutory provisions of Section 23 and 24 of the Act read with various judicial pronouncement for arriving at such determination with reference to the facts and circumstances, as also evidence led by the parties in each case. In the present case, the acquired land is 1 Hector and 21 Ares. Therefore, it is necessary to take into account only 50% market value of sale deed at Exhibit-16 for determining value of the acquired land in question. Sale deed at Exhibit-16 is in respect of 2 Ares land which was sold at Rs. 4000/-. Therefore, value of 1 Hector comes to Rs. 2,00,000/-. 50% is deducted towards smallness of land which works out to Rs. 1,00,000/- per Hector. Further 30% is deducted for three years post dated sale deed. Therefore, rate works out in the year 1983 approximately Rs. 70,000/- per Hector. Even @ Rs. 70,000/- per Hector market 14 value of the acquired land i.e. 60.05 Are comes to Rs. 42,350/-. In any case, in the present first appeal, the appellant restricted his claim to the tune of Rs. 29,555/- only. 10. In the above mentioned facts and circumstances, I am of the opinion that the Reference Court erred in coming to the conclusion that the appellant - original claimant failed to produce cogent evidence to show that he was entitled to enhanced compensation in respect of the acquired land. The observation made by the Reference Court in Para. 10 and 11 in respect of sale deeds produced by the appellant cannot stand, on the basis of evidence adduced by the appellant - original claimant on record. It is crystal clear from the evidence of P.W. 2 at Exhibit-22 in which he specifically stated that he was taking sugar cane crop but thereafter, for want of sufficient water, he started taking two crops 15 in a year. This itself shows that the acquired land was irrigated land. Therefore, conclusion arrived at by the trial Court that acquired land was jirayat land was not correct. Even the Reference Court failed to consider sale deed dated 28-11-1986 at Exhibit-16 for fixing market value of the acquired land. 11. In the above mentioned facts and circumstances, though the appellant is entitled to additional compensation in respect of the acquired lands, he restricted his claim in the first appeal to the tune of Rs.29,555/-, I hold that the claimant is entitled to additional compensation in respect of his acquired 60.05 Ares land to the tune of Rs. 29,555/- along with statutory benefits as per amended provisions of Land Acquisition Act, i. e. 30% solatium, 12% components, and interest thereon. In view of the above mentioned facts and circumstances, the judgment and award passed by the Reference Court 16 is set aside. Reference Application dated 13th October 1986 filed by the appellant - original claimant is allowed to the extent that the appellant - original claimant is entitled to additional compensation in respect of acquired 60.05 Ares land to the tune of Rs. 29,555/- along with statutory benefits as per amended provisions of Land Acquisition Act. No order as to costs. [ K.K. TATED, J.] sut/JUN09/fa10.95