Devidas Bhimrao Jaidare vs The State Of Maharashtra ...
2017 Latest Caselaw 3353 Bom

                                      1                      FA 420.2003.odt

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                           FIRST APPEAL NO.420/2003.


                Devidas Bhimrao Jaidare,
                Age: Major, Occu: Agriculture,
                R/o: Lonarwadi Tq. Paranda, 
                District Osmanabad.                    ...APPELANT

                Versus


                1. The State of Maharashtra,
                    through Collector, Osmanabad.

                2. The Special Land Acquisition 
                    Officer, No.2, Medium Project, 
                    Osmanabad.                       ...RESPONDENTS

                                      .....
                   Mr. J. R. Patil, Advocate for Appellant
                   Mr. B. V. Virdhe, AGP  for Respondents

                                       ...

                                         CORAM :   V. K. JADHAV, J.

DATED : 20TH JUNE, 2017.

...

ORAL JUDGMENT :-

1. Being aggrieved by the judgment and award

passed in LAR No.845/1991, the original claimant

Devidas has preferred First Appeal No.420/2003 to the

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extent of enhanced rate of compensation as awarded by

the reference court.

2. Brief facts, giving rise to the present appeal are as

follows : -

a] The Government has acquired the lands owned

and possessed by the appellant-original claimant for

construction of the Percolation Tank at Lonarwdi, Tq.

Paranda, District Osmanabad. Section 4 notification

was published on 18.8.1988. The S.L.A.O. has awarded

the compensation for the acquired lands @ Rs.23,000/-

per hectare corresponding to 230 per R and Rs.7,000/-

for a well situated in block no.259/1. Being dissatisfied

with the inadequacy of the compensation as awarded by

the SLAO, the appellant-original claimant has preferred

LAR No.845/1991. It has been contended that, the

SLAO has not considered the fertility of the acquired

land and also not considered the prevailing market price

of the agricultural land in the said vicinity. It has also

been contended that, the market value of the acquired

land is Rs.25,000/- per acre.

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     3       Respondent-State   has   strongly   resisted   the   claim 

by filing reply. It has been contended that the SLAO has

considered the quality, fertility and also considered the

market price of the land within the vicinity and awarded

just and reasonable compensation to the claimant. It

has also been contended that the claimant was not

taking irrigated crops and as such, market value

claimed by the claimant was not proper.

4. The appellant-claimant has adduced evidence in

support of his contentions. Respondent State has not

adduced any evidence. The Reference Court by

impugned judgment and award partly allowed the

reference petition and awarded the compensation at the

enhanced rate of Rs.300/- per R. Being aggrieved by

the same, the claimant has preferred this appeal.

5. The learned counsel for the appellant submits

that, the appellant-claimant was taking crops like jowar,

sunflower, kardi in the acquired land and he was also

taking the crops like sugarcane, wheat, chilli, paddy,

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ground-nut in the acquired land. There is a well in the

acquired land S.No.259/1 belonging to the claimant and

the SLAO has paid separate compensation of Rs.7,000/-

towards the costs of the said well. The learned counsel

submits that the claimant has placed on record sale

instance and also examined the purchaser of the said

sale instance. Said sale deed is marked at exh.19. Said

sale instance is from the adjoining village and in order

to substantiate said contentions, the claimant has also

examined witness no.3 and produced the map of

revenue circle Selgaon Sajja at exh.33. It is clear that

village Lonarwadi and village Shelgaon are from the

same Sajja and situated adjacent to each other.

Learned counsel submits that, Reference Court has not

considered the sale instance exh.19 and awarded the

compensation at a meager rate of Rs.300/- per Aar.

6. Learned AGP submits that, there is no entry of

well in the 7/12 extract Exh.25 produced by the

claimant in respect of the land acquired by the

Government from S.No.259/1. Said well must be a dry

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well and therefore entry to that effect had not appeared

in the 7/12 extract. The learned AGP submits that,

crop pattern as appearing in the 7/12 extract of the

acquired land only speaks about crops like jower,

sunflower and kardi. Crop pattern as reflecting from

the 7/12 extract does not support the contention of

claimant that he was taking the crops like sugarcane,

chilly, etc. Learned AGP submits that, sale deed exh.19

is in respect of the irrigated land and irrigation facility

was available for the said land under sale instance from

the water of the well. Learned AGP submits that,

reference court has therefore rightly discarded the sale

instance exh.19 and awarded just and reasonable

compensation at the enhanced rate by considering other

factors. The learned AGP submits that, said sale

instance is also one month later from the date of

notification under section 4 published in respect of the

acquired land.

7. On careful perusal of the pleadings, evidence and

judgment and award passed by the Reference Court,

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particularly, 7/12 Extract exh.25, it appears that the

claimant was taking the crops like Jowar, Kardi,

sunflower in the acquired land. The claimant has also

deposed that he was taking crops like sugar cane,

wheat, chilly, ground nut, paddy. Though well is

situated in the acquired land, gat no.259/1, and

acquired by the Government under the same project,

the entry of the well was not appearing in the 7/12

extract. It thus, appears that, the entries are not taken

correctly in the 7/12 extract about well and also in

respect of the crops. Even, assuming that the claimant

was taking crops like Jowar, Kardi, and sunflower, said

crop pattern indicates status of the acquired land as

semi-irrigated land.

8. So far as sale instance exh.19 is concerned,

witness Narayan Gharat purchaser of the land under

sale instance has admitted in his cross examination

that he paid more price towards consideration of the

land under sale instance for the reason that vendor sold

the said land along with share in the water of the well

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and also in the electric motor. It is clear from the map

exh.33 village Lonarwadi and aforesaid village Shelgaon

are adjacent to each other and sale instance of the said

village Shelgaon exh.19 can be considered as a

comparable sale instance for determination of market

price of the agricultural land in the said vicinity. Even,

assuming that the purchaser Narayan Gharat has paid

more consideration due to the share in the water of well

and electric motor, till then the Reference Court ought to

have considered the said sale instance for determination

of the market value of the acquired land. Section 4

notification of the acquired land was published on

18.8.1988 whereas said sale deed was executed on

26.9.1988. It further appears from the contents of the

sale instance that, the purchaser has not received right

in the well water exclusively, but he has received the

share in the well water alongwith other co-owners.

Though the sale deed was executed on 26.09.1988, it

appears from the contents of the sale deed that, the

parties to the sale instance decided to proceed with the

transaction much prior to the date of the sale deed and

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part of the consideration was also paid prior to the

execution of the sale deed. I, am, not inclined to discard

sale instance exh.19 only on the technical reason that

said sale deed was executed after Section 4 notification

published in respect of the acquired land.

9. Witness Narayan Gharat has also deposed that,

his purchased land is at a distance of 900 to 1000 feet

away from the acquired land. It appears that, the land

under the sale instance is a small piece of land, however

from the land Survey No.259/1, the land admeasuring

62 R belonging to the appellant-claimant was also

acquired along with the other lands. The claimant's

contention is well supported by the evidence of said

witness Narayan Gharat and map of the Revenue Circle

Shelgaon Sajja (exh.33). However considering the fact

that land under sell instance had fetched more price

than market price owing to some other reason, I am

inclined to award the compensation at the enhanced

rate of Rs.450/- per R to the appellant-claimant. The

appellant-claimant is entitled for the compensation at

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the enhanced rate of Rs.450/- per R along with all the

statutory benefits as awarded by the reference Court.

Hence, following order.

ORDER

1. Appeal is hereby partly allowed with

proportionate costs.

2. The Judgment and award passed by

the Civil Judge, Senior Division, Osmanabad,

dated 20.09.1995 in LAR No.845/1991, is

hereby modified in the following manner :-

i) The reference petition No.845/1991 is

hereby partly allowed and the claimant is

entitled for the compensation at the

enhanced rate of Rs.450/- per R (four

hundred and fifty) for the acquired land

Survey No.259/1 and land admeasuring 62

R, situated at village Lonarwadi, and land

Survey No.259/3 admeasuring 1 H 60 R

situated at village Lonarwadi, with all the

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statutory benefits as awarded by the

reference Court.

3. Decree be drawn up accordingly.

4. Appeal is accordingly disposed of.

[ V. K. JADHAV, J.]

....

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