Islam Ali Khwaja Ali vs The State Of Mah
2021 Latest Caselaw 10005 Bom

  51A 95.1995.odt                             1



              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        NAGPUR BENCH, NAGPUR.

                          FIRST APPEAL NO. 95 OF 1995

  Islam Ali son of Khwaja Ali,
  aged about 61 years, Occ. Agriculturist,
  R/o Hiwarkhed, Tq. Telhara, District Akola.
                                                               ...APPELLANT
                    Versus

  The State of Maharashtra,
  through the Collector, Akola.
                                                           ...RESPONDENT

                                    WITH

                         FIRST APPEAL NO. 593 OF 1995

  The State of Maharashtra
  through Collector, Akola.
                                                               ...APPELLANT
                    Versus

  Islam Ali s/o Khwaja Ali Meersaheb,
  aged about 60 years, agriculturist,
  r/o Hiwarkhed, Tq. Telhara, distt. Akola.
                                                           ...RESPONDENT


  Shri A.J. Thakkar, Advocate for the appellant in First Appeal No.
  95/1995 and for respondent in First Appeal No. 593/1995.
  Shri M.A. Kadu, A.G.P. for State.


                                 CORAM : PUSHPA V. GANEDIWALA, J.
                                 DATED : JULY 30, 2021.

  JUDGMENT :

In these appeals, the State and the owner of the

land, bearing Gat No. 97 to the extent of 1 hectare 43 R,

situated at Village, Soundala, Tq. Telhara, District Akola, both

have challenged the judgment and award dated 29/04/1994

passed by the 4th Joint Civil Judge, Senior Division, Akola in

L.A.C. No. 13/1993 whereby the Reference Court fixed the

market value of the land acquired @ Rs.25,000/- per acre.

2. The State challenges the aforesaid judgment and

award on the ground of exorbitant compensation, while the

owner/ claimant challenges the same for enhancement of the

compensation.

The facts, necessary to decide the present appeals,

may be stated as under :

3. A notification under Section 4 of the Land

Acquisition Act, 1894 ("the said Act") was published on

26/04/1989 followed by the notification under Section 6 on

17/04/1990, and thereafter, notices under Section 9 were

issued on 11/06/1990. Thereafter, further proceedings were

completed, and considering the claim of the claimant and

different sale instances, the Land Acquisition Officer ("LAO")

passed the award. The LAO awarded the price of the acquired

land @ Rs.17,500/- per hectare. The total compensation

awarded to the claimant is Rs.41,041/- including solatium and

interest. The award was passed on 02/05/1994.

4. Feeling dissatisfied with the meagre amount of

compensation, the claimant preferred reference proceedings

under Section 18 of the said Act and claimed compensation @

Rs.1,25,000/- per hectare. The learned Reference Court, on the

basis of pleadings between the parties, framed necessary issues

and recorded evidence as adduced by the parties. The claimant

examined himself at Exh.21 and brought on record 7/12

extract of the land of the claimant at Exh.26 which shows

situation of one well in the said land. The claimant had also

brought on record one sale instance of the adjoining land at

Exh. 28.

5. The Reference Court fixed the market value @

Rs.25,000/- per acre mainly by relying on the judgment of the

Reference Court delivered in L.A.C. No. 40/1990, wherein the

Reference Court, in that case, had fixed the price of the land @

Rs.20,000/- per acre. The Reference Court, in the case in hand,

observed that rate of Rs.20,000/- was fixed for dry land, and in

the case in hand, a 'well' is situated in the subject land,

therefore, the Reference Court fixed the rate of the land @

Rs.25,000/- per acre. This judgment is impugned in these

appeals.

6. I have heard Shri Thakkar, learned counsel for the

claimant, and Shri Kadu, learned A.G.P. for the State.

7. Shri Thakkar, learned counsel for the claimant,

submitted that the trial Court ought to have granted

compensation @ Rs.50,000/- per acre. That the Reference

Court has not considered the evidence of the claimant for

fixing the market value of the subject land. It is further

submitted that the Reference Court has failed to consider the

sale instance (Exh.28) for the adjoining land.

8. On the other hand, Shri M. A. Kadu, learned A.G.P.

for the State, fairly submits for passing appropriate order on

merits of the case.

9. I have considered the submissions put forth on

behalf of both the sides. The following point arose for

determination of this Court :

Whether the market value, as fixed by the Reference Court @ Rs.25,000/- per acre, indicates true market value of the property?

10. At the outset, there is absolutely nothing on record

to determine the true market value of the subject land barring

one sale instance at Exh. 28, which was two years post Section

4 notification. The Reference Court has rightly not considered

the same for determining the market value of the subject land.

In this sale instance, the purchase value of the land is shown as

Rs.23,000/- per hectare. However, the purchaser in his

testimony before the Court stated that he had purchased the

said land for Rs.40,000/-. This type of oral evidence which is

contrary to the documentary evidence cannot be considered

without further proof for the same in accordance with the

principles of the Evidence Act. Secondly, with regard to

proximity of time angle, the said sale instance is of post two

years of issuance of notification under Section 4 of the said Act,

which would again not reflect the true market rate. Moreover,

there would be doubt about the authenticity of the transaction.

11. For fixing the market value of the acquired land,

the Reference Court considered the judgment delivered in the

case of L.A.C. No. 40/1990 wherein the Reference Court fixed

the market value of the similarly situated dry land @

Rs.20,000/- per acre. In this case, the Reference Court fixed the

market value @ Rs.25,000/- per acre having regard to the fact

that a 'well' is situated in the subject land.

12. Neither the learned counsel for the claimant nor the

learned A.G.P. could point out as to how the market value

which is adjudicated for the similarly situated land in the case

of L.A.C. No. 40/1990 would not be applicable to the land in

question.

13. For the reasons aforesaid, I am not inclined to

disturb the well-reasoned judgment passed by the Reference

Court. I answer the point in the affirmative.

14. Given the aforesaid facts and circumstances of the

case, this Court does not find any merit in both of these

appeals. The same deserve to be dismissed and are accordingly

dismissed. No costs.

JUDGE ****** Sumit