The State Of Maharashtra And ... vs Kisan Baburao Bodke And Another
2017 Latest Caselaw 10044 Bom

                                        {1}
                                                                        FA 1835.16r.odt

                  IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                             BENCH AT AURANGABAD

                           FIRST APPEAL NO. 1835 OF 2016


     1. The State of Maharashtra,
        through the Collector, Ahmednagar,
        through the Special Land Acquisition
        Officer, No.3, Aurangabad road, Ahmednagar.

     2. The Executive Engineer,
        Minor Irrigation (EGS) Division-1,
        Dist. Ahmednagar.
                                                         .. Appellants
                                                         { Ori. Respondents)
Versus

     1. Kisan Baburao Bodke,
        Age 80 years, Occ. Agriculture,

     2. Raghu Baburao Bodke
        Age 75 years, Occ. Agriculture.

Both R/o. Village Mhaswandi, Tq. Sangamner,
District Ahmednagar.
                                                         .. Respondents.
                                                         { Ori. Claimants).

Mr. B.V. Virdhe, AGP for appellants
Mr. D.A. Bide, Advocate for respondents.


                                             CORAM : K.K. SONAWANE, J.

RESERVED ON : 6th December, 2017.

PRONOUNCED ON : 22nd December, 2017.

JUDGMENT :-

1] This appeal is directed against the judgment and award dated

9.11.2011 passed by the learned Civil Judge (S.D.), Sangamner in LAR No.106

of 2001 (old 226 of 2001) filed for enhancement of compensation under

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Section 18 of the Act 1894, 1894 (for short, "Act 1894").

2] The agricultural land Gat No. 345 admeasuring 0.75 R and Gat

No. 349 admeasuring 1.00 R belonging to the claimants were acquired by

the appellant/State of Maharashtra for construction of "Mhaswandi

Percolation Tank" at village Mhaswandi, Taluka Sangamner, Dist. Ahmednagar.

The notification under Section 4 of the Act 1894 was published in the Govt.

Gazette on 10.4.1997. After compliance of procedural formalities prescribed

under the Act 1894, the SLAO No.3, Ahmednagar declared the award under

section 11 of the Act 1894 and determined the market value of the land

under acquisition @ Rs. 36,700/- Per Hectare as well as 41,700/- Per

Hectare. The claimants did not accept the market value calculated by the

SLAO and accepted the compensation under protest. Thereafter, claimant

preferred the Reference Petition under section 18 of the Act 1894 for

enhancement of compensation.

3] According to claimants their lands under acquisition were

fertile and irrigated lands but the Land Acquisition Officer failed to

appreciate quality and yielding capacity of the lands. There was an

water source available in the agricultural lands of the claimants under

acquisition. According to claimants, the Land Acquisition Officer did not

appreciate those circumstances in proper manner and committed error by

awarding meager compensation amount. The claimants claimed market

value @ Rs. 2 Lakhs per hectare for their acquired lands. The claimant Kisan

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Bodke adduced his evidence on oath. He also produced certified copy of

comparable sale instance executed in the year 1992 in respect of agricultural

land Gat NO. 48, of village Mhaswandi, In refutal, the Land Acquisition

Officer stepped in to the witness box and supported the award declared by

him under Section 11 of the Act. The learned Reference Court considered

the attending circumstances on record in the light of evidence adduced on

record and arrived at the conclusion that acquired lands of the claimants

should get market value of Rs. 2 Lakhs per hectare, which would be

reasonable and proper market value for the lands located within the vicinity

of Mhaswandi village. Accordingly, the learned Reference Court, passed the

impugned judgment and award the legality, validity and propriety of which is

under challenge in this appeal.

4] The learned AGP on behalf of appellant vehemently submitted

that the Reference court did not appreciate entire circumstances on record

in its proper perspective and committed error while determining the market

value of agricultural lands of the claimants. The learned Reference Court

granted exorbitant and excessive market value. The sale instance relied

upon by the Reference Court was not comparable sale instance. No vendor

or vendee of the documents of sale (Exh.23) came to be examined on behalf

of claimant. Therefore, explicit reliance can not be kept on the said sale

deed being a comparable sale instances for calculating market value of the

acquired lands in this case. The learned AGP explained the circumstances

about quality and potentiality of the acquired lands of claimants and

submits that the market value arrived at by the Reference Court be upset

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and the Reference Petition filed on behalf of the claimants be rejected.

5] Admittedly, while fixing the market value of acquired lands,

comparable sale method for valuation was preferred by the Reference

Court. It is to be noted that the amount of compensation cannot be

ascertained with mathematical accuracy. The comparable sale instances

have to be identified by its proximity with the period of notification under

section 4 of the Act 1894 as well as its proximity with the location of

acquired lands. It is to be borne in mind that the principle for determination

of market value of the acquired lands would be the willingness of purchaser

to offer the price. Market value is ordinarily known as the price of the lands

which it would fetch in open market if sold by the willing seller, unaffected

by the special needs of a particular purchase. In short, it connotes the price

of the lands which a willing seller reasonably expects to fetch in the open

market from a willing purchaser. Section 23 of the Act 1894 enumerates

the circumstances for appreciation while determining the amount of

compensation. The basic criteria for consideration is that the market

value of the land under acquisition should be taken into consideration

on the basis of market value prevailing over within the vicinity, at the

date of publication of notification under Section 4 of the Act 1894. The

law postulates that market value is essential to be determined in proper

manner so that there would be neither unjust enrichment on the part of

acquiring body nor undue deprivation on the part of owner. The

circumstances of the disinclination of vendor to part with his land and

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urgent necessity of purchaser to buy should be discarded while ascertaining

the market value of the land. In the case of ONGC vs. Sendhabhai

Vasiram Patel (2005) 6 SCC 454, it has been delineated that some amount

of guess work is permissible for computation of just and proper market value

payable for the lands under acquisition. There would be no straight jacket

formula for universal application to all cases under the Act 1894.

6] Keeping in mind the aforesaid propositions of law, it would be

apposite to explore the evidence adduced on behalf of claimants in this

case. The claimant Kisan Bodke adduced the evidence by filing an affidavit

in lieu of examination-in-chief on record at (Exh.19). He deposed that their

lands under acquisition were fertile and irrigated lands. There was a well in

the lands for irrigation purpose. But, the Land Acquisition Officer classified

the lands as "Jirayat Lands" for the purpose of calculation of market value.

The claimants produced the 7 x 12 extract of the lands on record. In

support of his claim, the claimants relied upon the sale instance of land Gat

No. 48, admeasuring 0.24 R located at village Mhaswandi, which was sold in

the month of October 1992, for a lump-sum consideration of Rs. 30,000/-.

The claimants produced the certified copy of the sale deed on record.

7] The respondent SLAO also stepped into the witness box and

deposed that the market value of the acquired land calculated @ Rs.36,700/-

and Rs. 31,700/- per hectare was just and reasonable market value. The

SLAO considered the sale instance of village Mhaswandi and determined the

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market value. Unfortunately, he has not produced any documents on record

in support of his evidence.

8] The attending circumstances on record adumbrate that the

lands under acquisition were located within the vicinity of village

Mhaswandi, Taluka Sangamner, Dist. Ahmednagar. The lands were at a

distance of 10 to 12 Kms. from Pune - Nasik National Highway and half

kilometer from Gaothan area of village Mhaswandi. There were conveyance

facilities as well as basic amenities available in the village. According to

claimants, lands under acquisition were rich, fertile and irrigated lands

having water source from the well. The claimants claimed the valuation of

their lands as "Bagayat Lands". There is no doubt that in view of location

and other surrounding factors, the lands of the claimants under acquisition

did possess future potentiality. The revenue assessment also indicate that

those lands were of good fertile quality. However, the contention about the

water source appears not sustainable and considerable one. The claimants

produced 7x12 extracts of acquired land Gat No. 345 for the year 1997-98 on

record. There was a mutation entry of well in the other rights column of

7x12 extract, but the well was shown belonging to Shivaji Bodke, Narhari

Bodke and Dashrath Bodke, who purchased the portion of land for well in the

acquired land Gat No. 345 from the claimant Kisan Bodke. Therefore, it is

hard to believe that the concerned lands of the claimants were irrigated

lands. The classification of lands as "Jirayat Lands" by the Land Acquisition

Officer at the time of his award seems to be just, proper and reasonable

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one. Therefore, the lands under acquisition could be valued as "Jirayat

Lands" instead of "Bagayat Lands". Be that as it may, the lands under

acquisition were having potentiality to get good and reasonable market value

prevailing over in the vicinity at the time of notification under section 4 of

the Act 1894 which came to be published in the year 1997.

9] Now, turning to the pivotal issue of evaluation of concerned

lands of claimants, it is imperative to take into consideration the general

legal guidelines delineated under law for dealing with the mode and manner

as well as methodology for determination of market value of the lands under

acquisition. Their Lordships of Apex Court in the case of "Chimanlal

Hargovinddas Vs. Special Land Acquisition Officer, Poone and another

and Vijay Singh Liladhar vs. Special Land Acquisition Officer and

Nathumal Rajmal Baldota vs. Special Land Acquisition Officer " reported

in AIR 1988 SC 1652, observed in para.4 as below :-

4. The following factors must be etched on the mental screen : -

(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court. (2) So also the Award of the Land Acquisition Officer is not to be treated as a judgment of the trial Court open or exposed to challenge before the court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilised by him for making his valuation cannot be utilised by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the

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Award, approve or disapprove its reasoning, or correct its error or affirm, modify or reverse the conclusion reached by the Land Acquisition Officer, as if it were an appellate Court. (3) The Court has to treat the reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it.

(4) The claimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose.

• (5) XXX XXX XXX XXX XXX XXX XXX XXX"

10] It is evident from the aforesaid judicial pronouncement that the

Reference under Section 18 is not an appeal against the award passed by the

Land Acquisition Officer. The reference cannot be treated as a judgment of

the trial court open or exposed to agitate it before the court hearing the

reference. The Reference Court has to deal with it as an independent and

separate original proceeding filed before it. The position of the claimant

before the Reference Court is alike plaintiff in the civil suit and he has to

prove that price offered for his land by the Land Acquisition Officer in his

award is inadequate. The claimant has to establish his case on the basis of

material produced in the court. Moreover, the material produced and proved

on behalf of other side is also essential to be taken into consideration while

calculating the market value of the acquired land.

11] In order to ascertain the market value of the lands, the

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claimants heavily relied upon the sale instance of Gat No.48 admeasuring

0.24 R executed in the year 1992 for a consideration of Rs. 30,000/-. The

land under sale was situated in the same village Mhaswandi of the acquired

land. The claimants produced the certified copy of sale deed on record

(Exh.23). According to claimants, lands under acquisition were capable of

fetching more market value than the price of the lands prevailing over in the

vicinity of village Mhaswandi during the period 1992 of execution of sale

deed (Exh.23).

12] The learned AGP assailed that the claimants did not examine

the vendor or vendee to prove the genuineness of the sale instance prior to

consider it as evidence in this case. This particular kind of argument on

behalf of learned AGP appears to be based on figment of imagination for the

reason that there were no cross-examination on this particular aspect to the

claimant Kisan, who stepped into witness box and deposed before the

Reference Court by producing the certified copy of sale deed (Exh.23) on

record.

13] Undisputedly, the provision of Section 51A of the Act of 1894

prescribes that a certified copy of the sale instance registered under the

Registration Act, 1908 has to be accepted as evidence of the transactions

recorded in such documents. However, it is open for the Court to keep

reliance on the certified copy of the sale deed without examining its vendor

or vendee. The word,"may" used in Section 51-A gives discretion to the

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Reference Court to act upon it, though the certified copy of the sale deed

came to be accepted as evidence of the transaction recorded in it. The

Honourable Apex Court, in the case of "Land Acquisition Officer and

Mandal Revenue Officer Vs. Narsaiah", reported in AIR 2001 Sc 1117,

held that the certified copies of the sale deed relating to the similar lands

situated within the vicinity of lands under acquisition can be relied upon

even without examining its vendor or vendee or anybody else connected with

the sale to prove its genuineness.

14] As referred supra, claimants kept implicit reliance on the sale

instance produced on record (Exh.23). According to claimants, it is a

comparable sale instance to ascertain the correct market value of the lands

under acquisition. It would be reiterated that the proceedings before the

Reference Court under Section 18 of the Act 1894 was an independent and

original proceeding. In view of ratio laid down in the Chimanlal's case

(Supra), it was incumbent on the part of claimants as well as respondent

State, to prove its case by adducing separate evidence with reliable material

on record. In the instant case, the claimants produced the certified copy of

sale instance (Exh.23). Moreover, there was no cross-examination on behalf

of respondent State of Maharashtra to the claimant on the particular aspect

of its genuineness or voluntariness. The respondent State did not prefer to

adduce evidence by production of any other kind of sale instance on record

to counter the claim of the claimants. As per the settled position of law, the

material utilized by the Land Acquisition Officer for making his valuation at

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the time of award, can not be utilized by the Court unless it is produced and

proved before the concerned court. (Emphasis supplied to Chimanlal's case)

Therefore, the evidence of concerned LAO in the instant case would not

advance to the contentions propounded on behalf of appellant/State for lack

of documentary evidence on record. The LAO made reference in his

evidence, about the sale instance of village Mhaswandi, considered by him at

the time of award. But those sale instances were not produced before the

Reference Court and consequently, the entire evidence of LAO would

render otiose in this case.

15] Admittedly, the Land Acquisition Officer, while award under

Section 11 of the Act 1894 has considered the sale instances of village

Mhaswandi executed prior to 3 years of the notification under Section 4 of

the Act of 1894. The claimants produced certified copy of the sale deed

(Exh.23) of land Gat No. 48 admeasuring 0.24 R for a consideration of Rs.

30,000/-. The sale deed was executed in the year 1992 i.e. much prior to

publication of notification under section 4 of the Act 1894 in this case.

Therefore, there is no impediment to appreciate the sale deed (Exh.23) as a

comparable sale instance for making valuation of the lands under

acquisition. The Land Acquisition Officer has awarded market value @ 367

and 417 per R, whereas, the lands under sale in the transaction (Exh.23) was

sold at a price of Rs.30,000/- i.e. @ Rs. 1250/- per R in the year 1992.

Pursuant to exposition of law laid down in the case of ONGC Vs.Sendhabai

Vasiram Patel (cited supra), reasonable guess work is permissible while

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computation of market value of the acquired land. The sale instance

(Exh.23) if taken into consideration for market value of lands within the

vicinity of village Mhaswandi in the year 1992 it would accrued around

Rs.1250/- per R. After guess work on the basis of escalation of price of the

lands in the vicinity, it would be concluded that the Reference Court has

correctly appreciated the circumstances calculating the market value of the

acquired lands @ Rs. 2,000/- per R. The escalation in the price of lands of

village Mhaswandi @ 10 to 15% per year since 1992 till the year 1997 of

notification under Section 4 would be reasonable and appropriate in this

case. In the result, the findings of the Reference Court cannot be faulted in

regard to determination of market value of the lands under acquisition.

Therefore, there is no propriety to cause any interference in the conclusions

drawn by the Reference Court for computing the market value of lands of

claimants under acquisition.

16] In such circumstances, there is no impediment to arrive at the

conclusion that the market value determined by the Reference court for the

lands under Acquisition appears to be just, proper and reasonable one.

There are no errors in the findings of learned Reference court. The

comparable sale instance (Exh.23) considered by the Reference court for

determination of market value seems to be genuine and voluntary sale for

calculating the market value of the lands under acquisition. It would be

reiterated that there is no other evidence produced on record on behalf of

respondent SLAO to facilitate Reference Court for evaluating the

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circumstances to ascertain the market value of lands under acquisition.

There is no legal infirmity in the impugned judgment and award. Therefore,

interference is unwarranted in the findings of the learned Reference Court.

In contrast, the same are liable to be made confirmed and absolute.

17] In the result, in view of the aforesaid discussion, the appeal

stands dismissed. No orders as to costs.

[K.K. SONAWANE] JUDGE.

grt/-