Mahananda Balaji Hulsure And ... vs The State Of Maharashtra And ...
2017 Latest Caselaw 6399 Bom

                                     1                FA NO.3734 OF 2016

        IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                  BENCH AT AURANGABAD

                   FIRST APPEAL NO. 3734 OF 2016

           1.      Mahananda w/o Balaji Hulsure,
                   Age : 40 years, Occu. Agriculture,

           2-A) Dhiraj s/o Dattatraya Bagdure,
                Age : 12 years, Occu. Education,

           2-B) Suraj s/o Dattatraya Bagdure,
                Age : 14 years, Occu. Education,

           2-C) Deepa d/o Dattratya Bagdure,
                Age 17 years, Occu : Education,

                   No.2-A to 2-C, All Minors U/g of
                   Their Father
                   Dattatraya s/o Madhavrao Bagdure,
                   Age 42 years, Occu : Agriculture,

           3.      Narayan s/o Nivrutti Biradar,
                   Age : 50 years, Occu. Agriculture,

           4.      Sanjay s/o Vithalrao Patil,
                   Age : 42 years, Occu. Agriculture,

           5.      Baburao s/o Deorao Mugale,
                   Age : 57 years, Occu. Agriculture,

           6.      Madhav s/o Gundaji Bagdure,
                   Age : 72 years, Occu. Agriculture,

           7.      Vyankat s/o Manik Gangathade,
                   Age : 54 years, Occu. Agriculture,

           8.      Sanjay s/o Kantrao Sardeshmukh,
                   Age : 45 years, Occu. Agriculture,

                   All R/o Hosur, Tq. Nilanga,
                   District Latur.             ...APPELLANTS
                                               ( Orig. Claimants).



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                                       2               FA NO.3734 OF 2016


                   VERSUS

           1.      The State of Maharashtra,
                   Through District Collector,
                   Latur District Latur.

           2.      The Sub-Divisional Officer,
                   Nilanga, Tq. Nilanga,
                   District Latur.

           3.      The Executive Engineer,
                   Latur Minor Irrigation Division,
                   Latur District Latur
                                               ...RESPONDENTS
                                                 (Orig. Respondents)

           Shri S.B. Gastgar, Advocate for Appellants
           Shri S. J. Ganachari, AGP for State
           Shri S.G. Bhalerao, Advocate for Respondent No.3.
                           ...

                                  CORAM: P.R. BORA, J.

                                 ***
           Date of reserving the judgment : 20.06.2017
           Date of pronouncing the judgment: 21.08.2017.

                                    ***

  JUDGMENT:

1. The original claimants in LAR No.1/2014 decided

on 7th of October, 2015, by the Court of Civil Judge, Senior

Division, Nilanga, at Latur, have preferred the present

appeal seeking enhancement in the amount of

compensation as awarded by the said Court.

3 FA NO.3734 OF 2016

2. The non agricultural land admeasuring 450.60

sq.mts. Out of Gat No.375 of village Hosur, owned by the

appellants, who are hereinafter referred to as the

claimants, was acquired for construction of additional road

of Halgara to Hosur for Hanumantwadi Storage Tank at

village Hosur. The notification under Section 4 of the

Land Acquisition Act, hereinafter referred to as the Act,

was published on 20th September, 2011, and the award

under Section 11 came to be passed on 12th of June, 2013.

The Special Land Acquisition Officer determined the

market value of the said land at the rate of Rs.490/- per

square meter and, accordingly offered the compensation to

the claimants. Dissatisfied with the amount of

compensation so offered, the claimants preferred an

application under Section 18 of the Act which was

adjudicated by the Court of Civil Judge, Senior Division, at

Nilanga ( hereinafter referred to as the Reference court).

The Reference Court determined the market value of the

acquired land at the rate of Rs.1446/- per sq.mt. And,

accordingly, enhanced the amount of compensation.

Dissatisfied with the compensation so determined, the

claimants have preferred the present appeal seeking

4 FA NO.3734 OF 2016

enhancement in the said amount.

3. Shri Gastgar, learned Counsel appearing for the

appellants claimants, submitted that the Reference Court

has failed in considering that the lands adjacent to the

acquired lands were sold at the rate of Rs.200/- per sq.ft.

And that was the prevailing market value of the acquired

land at the relevant time. Learned Counsel submitted

that the three sale instances ( Exh.18 to Exh.20) were

brought on record by the claimants to substantiate their

claim but the Reference Court has not properly appreciated

the said evidence. Learned Counsel, therefore, prayed for

adequate enhancement in the amount of compensation on

the basis of the evidence placed on record by the

claimants.

4. Shri S.G.Bhalerao, learned Counsel appearing

for the acquiring body, supported the impugned judgment

and award. Learned counsel submitted that the Reference

Court has determined the market value of the acquired

non agricultural lands on the basis of the sale instance

placed on record by the claimants themselves and, as

5 FA NO.3734 OF 2016

such, the claimants are now estopped from raising any

objection to the market value as has been determined by

the Reference Court. Learned counsel submitted that the

appeal is devoid of any substance and, therefore, prayed

for dismissal of the appeal. Learned A.G.P. adopted the

arguments advanced by Shri Bhalerao, learned Counsel.

5. I have carefully considered the submissions

made on behalf of the learned Counsel appearing for the

respective parties. I have also perused the impugned

judgment and the evidence on record. Claimant nos. 1 to

8 are the owners and possessors of the plot out of Gat

No.375 situate at village Hosur to the extent of 83 sq.mt.,

16 sq.mt., 41.82 sq.mt., again 41.82 sq.mt., 84 sq.mt.,

again 84 sq.mt., 50 sq.mt. and 50 sq.mt., respectively; in

total 450.64 sq.mt. As noted hereinabove, the Special

Land Acquisition Officer had determined the market value

of the said plots at the rate of Rs.490/- per sq.mt. and has

accordingly offered the amount of compensation to the

respective claimants. Before the Reference Court the

claimants had claimed the compensation at the rate of

Rs.300/- per sq.ft. In order to substantiate the claim so

6 FA NO.3734 OF 2016

raised by them, one of the claimants, namely, Dattatraya

Madhavrao Bagdure deposed before the Reference court.

The claimants had also examined three more witnesses,

namely, Kalidas Dhondiram Biradar, Pandurang Laxman

Biradar, Dhanaji Rajaram Biradar in order to prove the sale

instances on which reliance was placed by them for the

purpose of determining the market value of the acquired

lands.

6. On behalf of the respondents though no oral

evidence was adduced, certified copies of two sale

instances were placed on record at Exh.37 and Exh.38 to

buttress their contention that the Special Land Acquisition

Officer had correctly determined the market value of the

acquired lands. The Reference Court has elaborately

discussed the evidence adduced by the claimants in the

form of sale instances in paragraph nos. 7 to 10 and 11

and 12 of the impugned judgment. As noted earlier,

three sale instances were brought on record by the

claimants to substantiate their claim for enhancement in

the amount of compensation. The sale instances were

duly proved by the claimants through the evidence of PW 2

7 FA NO.3734 OF 2016

to PW 4. The sale deeds are at Exh.18, Exh.19 and

Exh.20.

7. The property which was the subject matter of

Exh.18 was the Gram Panchayat House No.148 situate at

village Hosur admeasuring 9.66 meters and it was sold by

registered sale deed executed on 17 th of October, 2003, for

consideration of Rs.20,000/- i.e. at the rate of Rs.2070/-

per sq.mt. The sale deed at Exh.19 pertains to Gram

Panchayat House No.387 situate at village Hosur

admeasuring 33.35 sq.mts. And it was sold on 4.4.2005

for value of Rs.62,000/- i.e. at the rate of Rs.1854 per

sq.mt. The property which was involved in the sale deed

at Exh.20 was Gram Panchayat House No.324/1 situate at

village Hosur admeasuring 8.36 sq.mts. and it was sold on

11.6.2008 for the price of Rs.10,000/- i.e. at the rate of

Rs.1,196/- per sq.mt.

8. The sale deeds which were placed on record by

the respondents are at Exh.37 and Exh.38. The Gram

Panchayat House No.206 admeasuring 57.62 sq.mts. was

the subject matter of Exh.37. The said house situate at

village Hosur was sold for the consideration of Rs.10,000/-

8 FA NO.3734 OF 2016

i.e. at the rate of Rs.173/- per square meter on 9.11.2009.

Sale deed at Exh.38 pertains to Gram Panchayat House

No.338/2 situated at village Hosur admeasuring 190

sq.ft. and the same was sold on 13 th of July, 2011, for

Rs.5,000/- i.e. at the rate of Rs.126/- per sq.mt.

9. Perusal of the impugned judgment reveals that

the Tribunal has kept the sale instances at Exh.18 and

Exh.19 out of consideration observing that both the said

sale instances were pertaining to the period prior to more

than six years. The Reference Court has preferred to rely

upon the sale instances at Exh.20. The Reference Court

has observed that the sale deed at Exh.20 executed on

11.6.2008 was nearer in proximity of time considering the

date of issuance of Section 4 notification vide which the

subject lands were acquired. It is further observed by the

Reference Court that the sale deed at Exh.20 was

pertaining to open land whereas the sale deeds at Exh.18

and Exh.19 were pertaining to the constructed houses.

The impugned judgment also reveals that the Tribunal has

also taken into account the fact that the sale instance at

Exh.20 was executed prior to about two years of the

9 FA NO.3734 OF 2016

publication of Section 4 notification in the Government

gazette. Section 4 notification though was published in the

Government gazette on 29th of July, 2010, it was

displayed in the village on 20.9.2011. The Reference

Court has, therefore, notionally increased the price

received to the land involved in Exh.20 and accordingly

has determined the market value of the acquired lands at

the rate of Rs.1446/- per sq.mt.

10. After having considered the reasons assigned by

the Reference Court for determining the market value of

the acquired lands at the rate of Rs.1446/- per sq.mtr., it

does not appear to me that the Reference Court has

committed any error. Perusal of the sale deeds at Exh.18

and Exh.19 clearly reveals that both the sale deeds were

pertaining to the constructed houses whereas the acquired

lands were open lands. The Reference Court was,

therefore, fully justified in not considering the said sale

instances. In fact, they were not comparable sale

instances. Moreover, as has been observed by the

Reference Court in paragraph no.9 of the impugned

judgment, the house property involved in Exh.18 was

10 FA NO.3734 OF 2016

purchased by PW 4 Dhanaji, the said property was at a

distance of 100 feets to 150 feets from his ancestral

house. He had, therefore, a reason to purchase the said

property by giving a higher price. Similarly, PW 3

Pandurang, who sold Gram Panchayat House No.387,

which was involved in the sale instance at Exh.19,

admitted in his cross examination that the purchaser

purchased the said house since it was near to his existing

house and that there was a shop in the said property.

11. Considering the facts as above, it has to be

stated that the Reference Court was fully justified in not

relying on the sale instances at Exh.18 and Exh.19. It also

cannot be ignored that though the respondents had placed

on record two sale instances at Exh.37 and at Exh.38, the

same were also not considered by the Reference Court for

the same reasons though the consideration received in the

said sale transactions was considerably on lower side than

the consideration received to the open land involved in the

sale deed at Exh.20. Though the appellants have objected

that the Tribunal has erred in not considering the sale

instances at Exh.18 and Exh.19, there appears no

11 FA NO.3734 OF 2016

substance in the objection so raised in view of the sound

reasons assigned by the Reference Court. Moreover, the

sale instance at Exh.20 also was relied upon by the

claimants themselves. Undisputedly, it was of the period

in near proximity to Section 4 notification issued for

acquisition of the subject lands. The Tribunal has also

given notional enhancement / increase in the price

received to the land which was the subject matter of

Exh.20. Considering all these circumstances,

unhesitatingly, it can be said that the Reference Court has

not committed any error in determining the market value

of the acquired lands at the rate of Rs.1446/- per sq.mt.

The appellants have utterly failed in making out any case

so as to enhance the amount of compensation than

awarded by the learned Reference Court.

12. The First Appeal being devoid of any substance,

deserves to be dismissed, and accordingly, it is dismissed,

however, without any order as to the costs.

(P.R.BORA) JUDGE ...

AGP/3734-16fa