Bombay High Court
Udhav S/O Venkatrao Solanke vs The State Of Maharashtra on 15 June, 2016
Bench: V.K. Jadhav
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
FIRST APPEAL 596 OF 2001
1. Yadav s/o Narsu Manale,
Age 61 years, Occu : Agriculture,
R/o : Malegaon (Jevri), Taluka Nilanga,
District Latur.
2. Vinayak s/o Yadav Manale,
Age 34 years, Occu : Agriculture,
R/o : Malegaon (Jevri), Taluka Nilanga,
District Latur.
3. Janardhan s/o Yadav Manale,
Age 39 years, Occu : Agriculture,
R/o : Malegaon (Jevri), Taluka Nilanga,
District Latur. ... Appellants
(Ori Claimants)
Versus
The State of Maharashtra,
Through the Collector, Latur,
District Latur. ... Respondent
(Ori Respondent)
WITH
FIRST APPEAL NO. 640 OF 2001
Udhav s/o Venkatrao Solanke,
Age 43 years, Occu : Agriculture,
R/o Malegaon (Jevri), Taluka Nilanga,
District Latur. ... Appellant
(Ori Claimant)
Versus
The State of Maharashtra,
Through the Collector, Latur,
District Latur. ... Respondent
(Ori Respondent)
.....
Advocate for the appellants : Mr. V. D. Gunale
AGP for respondent/State : Mr. G. O. Wattamwar
.....
::: Uploaded on - 18/06/2016 ::: Downloaded on - 30/07/2016 05:30:49 :::
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CORAM : V. K. JADHAV, J.
DATED : 15th JUNE, 2016
ORAL JUDGMENT:-
1. Being aggrieved by the common judgment and award passed
by learned Civil Judge Senior Division, Nilanga dated 03.03.2001 in
Land Acquisition Reference No. 329 of 1998 along with connected
references, the original claimants in L.A.R. No. 333 of 1998 (old No.
869/92) have preferred First Appeal No. 596 of 2001, whereas, the
original claimant in L.A.R. No.330 of 1998 (old No.514/92) has
preferred First Appeal No. 640 of 2001.
2. Brief facts giving rise to the present appeals are as follows:
a) The lands of the above appellants/claimants situated in village
Malegaon (Jevri) were acquired by the State Government by
notification under Section 4 of the Land Acquisition Act, published on
12.05.1988 and the Special Land Acquisition Officer, by his award
declared on 14.01.1992, was pleased to award compensation at the
rate of Rs.12,000/- and Rs.14,000/- per hector. Being dissatisfied by
the same, all the claimants preferred reference petitions under
Section 18 of the Land Acquisition Act claiming compensation at the
rate of Rs.30,000/- per acre corresponding to Rs.75,000/- per hector.
b) According to the claimants, the acquired lands were situated
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near village Malegaon Jevri which is having population of 5000.
There are schools, market facilities in the village. Furthermore,
Taluka Headquarter Nilanga is only at the distance of 10 kilometers.
The village is also situated in the command area of Ambulga Sugar
factory and Medium Project of Aurad Shahajani. The acquired lands
were dry lands as well as seasonally irrigated and bagayat lands.
Some of the claimants were using water from well and stream by
laying down pipe line and were raising bagayat crops. It is contended
that the Special Land Acquisition Officer has considered only low
price data for determining the market value by capitalization method
and the sale deeds of low prices were only considered for determining
the market price by comparable sale instances.
c) Respondent State has strongly resisted the Land Acquisition
References by filing written statement. It is denied that the acquired
lands were seasonally irrigated and bagayat lands and the claimants
were using water from stream or well through pipe line. It is also
denied that the acquired lands were fertile and black cotton soil lands.
According to the State, Land Acquisition Officer has visited the spot
and has considered the quality and fertility of the lands and after
comparing the same, has awarded most reasonable compensation as
per the prevailing market prices.
d) On the basis of the aforesaid pleadings, the reference court has
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framed the issues and on the basis of the evidence on record, the
reference court has partly allowed the references and awarded
compensation for the acquired lands at the fixed rate of Rs.27,500/-
p.h. with statutory benefits. Being aggrieved by the same, the original
claimants have preferred two separate appeals for enhancement of
compensation. Since both these appeals arise out of the same
acquisition proceedings and are decided by the reference court by
common judgment and award, these appeals are being decided by
this common judgment.
3. Learned counsel for the appellants submits that the reference
court has not considered the sale instances produced on record and
relied by the appellants/claimants. Learned Judge of the reference
court has erroneously discarded the sale deed Exh.31 which truly
reflects the market price prevailing in the area. The
appellants/claimants have also relied on certified copy of the
judgment in LAR No. 249/1993 dated 02.05.1998. It was in respect of
the lands from Malegaon Jevri acquired under notification dated
30.03.1991. In the present case, the notification was dated
28.09.1988. Though the prises fixed by the reference court as on
30.03.1991 cannot be a guiding factor to fix the price of lands as on
28.09.1988, the reference court should have extended the benefit to
the agriculturists by considering the award passed in the said LAR
No.249/1993. As per certified copy of the judgment delivered in LAR
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No.249/1993 Exh.24, learned Judge has fixed the market value of the
acquired land at the rate of Rs.30,000/- per acre as on 30.03.1991.
However, in the present case, learned Judge of the reference court
has not considered the said judgment and on the basis of copy of
Index-II register, awarded compensation. Learned counsel submits
that even though the reference court has observed that the acquired
lands are irrigated lands and that the Special Land Acquisition Officer
ought to have assessed acquired lands as irrigated lands or lands
having irrigation potentials, dismissed the LAR No. 330 of 1998
without recording any reasons.
4. Learned AGP submits that learned Judge of the reference court
has rightly discarded the sale deed Exh.31. The purchaser has
admitted that the land purchased by him vide sale deed Exh.31 was
adjacent to his dry land. The reference court has considered that the
sale deed Exh.31 discloses that the land purchased was having
source of water as the purchaser in the said sale instance purchased
the land along with 1/3rd share in the well. The contents of the sale
deed, however, disclose that there was ample water in the well to
irrigate both the lands. It further appears from the contents of the sale
instance Exh.31 that the purchaser had purchased that land for the
purpose of irrigation of his adjacent land. Learned AGP submits that
the reference court has therefore, rightly discarded the sale instance
Exh.31 with the observation that the sale is showing excessively high
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price. Learned AGP submits that so far as the judgment delivered in
LAR No.249/1993, the reference court, in that reference, has placed
reliance on the same sale instance which is discarded by the
reference court in this group of references. The reference court has
elaborately discussed that point and with reasons refused to award
same rate as determined by the court in said LAR No.249/1993.
Learned AGP submits that there is no substance in the appeals and
the appeals are thus liable to be dismissed. Learned AGP submits
that the reference court has awarded interest from the date of
possession and the same is thus required to be corrected in view of
the authoritative pronouncement of Full Bench of this Court in the
case of State of Maharashtra vs. Kailash Shiva Rangari, reported
in 2016 (3) Mh.L.J. 457.
5. On careful perusal of sale instance Exh.31, it appears that the
purchaser therein purchased that land for the purpose of irrigation of
his adjacent land. Further, the contents of the sale instance Exh.31
disclose that the land under purchase is having source of water and
the purchaser has purchased the land along with 1/3 rd share in the
well. Learned Judge of the reference court has therefore, rightly
observed that the market price shown in the sale deed included the
price of share in the well. Furthermore, the land under said sale
instance fetched more price for the reason that the adjacent land is
also owned and possessed by the purchaser. Learned Judge of the
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reference court has therefore, rightly discarded the sale instance
Exh.31 which is certainly showing excessively high price.
Furthermore, learned Judge of the reference court has observed that
the said purchaser purchased the land from his distant relative and
the certified copy of Index-II register discloses that the said distant
relative of the purchaser entered into four sale transactions during the
period of 1986-87 and 1987-88. The reference court has observed
that the said vendor has sold lands three times and purchased once.
It is the part of record that the said vendor purchased the land ad-
measuring 54 Gunthas in the year 1987 and sold the same for the
same price to one Chandrakala Jadhav in the year 1988. In the
backdrop of this, learned Judge of the reference court has correctly
come to the conclusion that the sale instance Exh.31 is not a genuine
sale instance and the same must have been brought into effect for
creating evidence.
6. Learned Judge of the reference court has rightly discussed the
oral and documentary evidence placed on record in paragraph No. 15
of the impugned judgment and held that the Special Land Acquisition
Officer ought to have assessed the acquired lands as irrigated lands
or lands having irrigation potentials.
7. So far as the judgment delivered in LAR No.249/1993 is
concerned, learned Judge of the reference court in the said LAR has
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fixed market value at the rate of 30,000/- per acre as on 30.03.1991.
Learned Judge of the reference court, in that matter, has solely relied
on the same sale deed which came to be produced in the present
group of matters. In view of this, learned Judge of the reference court
is justified in discarding the said judgment delivered in LAR No.249 of
1993 wherein, no discussion is made about the excessive price of the
said sale deed coupled with the other circumstances. Consequently,
learned Judge of the reference court has considered the record of the
land acquisition proceedings, more particularly copy of the Index-II
register. It appears that in the earlier notification in respect of the
same project, the Land Acquisition Officer has accepted the sale
instance as genuine sale dated 07.01.1983 wherein, land Survey
No.57 ad-measuring 1H. 1R. was sold for Rs.14,851/- . Learned
Judge of the reference court has considered 10% increase per year
till the date of notification in the present matter i.e. till 28.09.1988 and
observed that the rate as on 28.09.1988 is Rs.25,652/- p.h.. In the
similar manner, learned Judge of the reference court has considered
one more sale instance which is of the year 1986 for consideration of
Rs.22,989/- p.h. By giving rise of 10% per year in the above two sale
instances, the market value comes to Rs.25,632/- and Rs.29,068/-
p.h. respectively as on the date of notification in the present matter
i.e. on 28.09.1988. It further appears that the learned Judge of the
reference Court, without any reason, carved out the average of the
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said two sale instances and awarded compensation at the rate of
Rs.27,500/- p.h.. Instead, learned Judge of the reference court ought
to have considered the sale instance of higher consideration and
awarded compensation at the rate of Rs.29,068/- rounded to
Rs.29,000/- p.h. Thus, the impugned judgment and award is required
to be modified to that extent.
8. Learned Judge of the reference court, in paragraph No. 13 and
14 of the impugned judgment, has concluded that the acquired lands
were situated near the water storage of percolation tank and
therefore, they were having irrigation potentials. The reference court
has further, in unequivocal terms, held that the Special Land
Acquisition Officer ought to have acquired the said lands as irrigated
lands. In the backdrop of this, it appears that without recording any
reason, by considering some incorrect entries in 7/12 extract, the
reference court has dismissed LAR No. 330 of 1998. The claimant in
the said LAR No. 330 of 1998 is also entitled for the same rate of
compensation as concluded by me in the foregoing paragraphs.
9. So far as the interest part is concerned, it appears from the
operative part of the impugned judgment that learned Judge of the
reference court has awarded interest under Section 28 of the Land
Acquisition Act. Furthermore, the State has not preferred any appeal,
nor submitted any cross objection to the extent of the submission as
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made by learned AGP on behalf of the State. In light of the above
discussion, I proceed to pass the following order :
ORDER
I. First Appeal No. 596 of 2001 and First Appeal No. 640 of
2001 are hereby partly allowed with proportionate costs.
II. The impugned judgment and award with reference to LAR
No.333 of 1998 (Yadav s/o Narsu Manale and others vs.
The State of Maharashtra) and LAR No. 330 of 1998
(Udhav s/o Venkatrao Solanke vs. The State of
Maharashtra) is hereby modified in the following manner:
"The compensation for the acquired land is fixed at the rate
of Rs.29,000/- p.h. and the respondent is directed to pay
enhancement of compensation to the claimants at the
above rate after excluding the compensation earlier paid."
III. Needless to say that the claimants are entitled for all the
statutory benefits as directed in the operative part of the
order passed by the reference court.
IV. Rest of the judgment and award stands confirmed.
V. Award be drawn up in tune with the above modification.
VI. Both the appeals are accordingly disposed of.
( V. K. JADHAV, J.)
vre/
