Sunday, 14 December 2014

When land shall be deemed to be irrigated under land acquisition Act?



The   agricultural   property   acquired 
belonging to the appellants, from the record was 
irrigated,   though   no   receipts   for   selling 
sugarcane was tendered.   However, it had a well, 
indicated   by   the   Special   Land   Acquisition 
Officer,   and   the   learned   Judge.     In   the 
situation, the award calls for modification. 
  

FIRST APPEAL NO.532 OF 1997
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
Goroba s/o Balbhim Bhalekar,

VERSUS

The State of Maharashtra

 CORAM: K.U.CHANDIWAL, J.
         
 DATE : February 17th, 2014

Citation; 2014(6) MHLJ 391

The   original   claimants   /   appellants   feel 
aggrieved   by   inadequate   enhancement   effected   by 
the   learned   second   Joint   Civil   Judge,   Senior 
Division, Osmanabad, in LAR No.141/1991 by order 
dated   7/7/1997,   thereby   awarding   Rs.6,000/­   per 

acre.
  
There   is   no   controversy   that 
2.
agricultural   property   of   the   appellants   1   H.   96 
R. forming small pieces situate at village Masla 
(Khurd)   was   subject     of   notification   under 
Section 4 dated 22.9.1983 possession of which was 
taken   on   25th   April,   1985,   and   the   Special   Land 
Acquisition   Officer   declared   the   award   on 
30.12.1985, at the rate of Rs.2,000/­ per acre.
3.
Before the learned Judge, there were two 
land   References;   one   of   the   appellants     No.
141/1991 and another No.146/1991.
4.
Feeling   aggrieved   by   the   award   of 
Special   Land   Acquisition   Officer   Reference   under 
Section 18 was moved to the learned Collector who 
transmitted   it   to   the   Court   and   the   learned 
Reference Court awarded Rs.6,000/­ per acre.   

      Mr.   Choudhari,   learned   Counsel   for   the 
5.

appellant land holder says, the appellant has set 
up   a   claim   of   Rs.30,000/­   per   acre.     Two   sale 
instances at Exhs. 23 and 24 were produced.   The 
sale deed at Exh.24 was for 1 acre 14 gunthas of 
land   sold   for   Rs.45,500/­   on   10th   April,   1984, 
from   part   of   survey   No.57   of   the   same   village 
Masla.  
Grievance of learned Counsel is, out of 

6.
  
the   same   acquisition   proceedings;   one   Dnyandeo 
Ingale   had   preferred   LAR   No.143/1991   and 
Dnyandeo   Narwade   had   preferred   LAR   No.148/1991 
before the learned Civil Judge, Senior Division, 
Osmanabad.     In   those   proceedings,   indeed,   the 
sale   deed   Exh.24   referred   to   above   was   also 
considered and said Court granted compensation at 
the rate of Rs.24,000/­ per acre.   The grievance 
is,   the   transaction   of   sale   deed   Exh.24   was   a 
bona fide transaction.     The award under LAR No.
143/1991   or   148/1991   is   not   questioned   by   the 
State as to its excessive character.  
7.
Learned   A.G.P.   says,   no   interference 
warrants   in  the  award   as   the   sale   instances  and 
grouping is properly considered by the Reference 
Court.
8.
I   have   gone   through   original   record, 
including   evidence   of   claimants   Mahadeo   Balbhim 

Bhalekar,   the   attesting   witness   Shri   Suresh 
Balbhim   Shinde   to   sale   deed   Exh.24.         The 
evidence on behalf of the Government was from the 
Special   Land   Acquisition   Officer   Shri 
Y.E.Suryawanshi.     He   says   that   the   compensation 
was proper and adequately paid to the respective 
claimants   in   the   light   of   the   quality   of   the 
land.     Proper   sale   deeds   were   analyzed   at   the 
time of declaring the award.
9.
 Mahadeo     has   described   details   of   his 
agricultural   properties;   additionally,   stated 
that it was fully irrigated with well water and 5 
H.P.   motor   was   installed.       He   was   taking   cash 
crop; sugarcane was transported to sugar factory 
at   a   distance   of   15   kms   from   his   village;   some 
yield   was   sold   at   Sholapur,   which   is   at   a 
distance   of  45   kms   from  his  village.   There   were 
mango   trees   in   the   field.       According   to   him, 
when   the   lands   were   acquired   prior   thereto,   at 
the   relevant   time,   market   price   was   Rs.30,000/­ 
to Rs.35,000/­ per acre.  One Viju Salve sold his 
land   to   Uddhav   Jagtap   for   consideration   of   Rs.
35,000/­   per   acre.     Sale   deed   was   executed. 
Another   land   of   Sham   Patil   was   sold   to   Waghade 
admeasuring   4   acres   at   the   rate   of   Rs.30,000/­ 
per   acre.     He   has   stated   that   these   lands   were 
situated   at   300   fts.     to   400   fts.   from   the 
acquired   lands.     The   land   of   Dnyanoba   Sheshrao 
Jadhav   was   also   acquired   for   which   Reference 

awarded Rs.24,000/­.  He has stated that 
Court 

those     lands   were   situate   at   a   distance   of   200 
fts. from his land.  The witness was subjected to 
cross   examination   by   learned   District   Government 
Pleader.     He   did   not   distort   the   witness   about 
proximity   of   the   land   subject   of   land   Reference 
No.143/1991 or Exh.24.
It is pertinent that before the learned 
10. 
Judge, judgment in LAR No.143/1991 was tendered, 
however,   Learned   Judge     has   ignored   it   only   on 
the   ground   that   it   is   not   binding   or   that   the 
quality   of   the   said   land   was   high.       These 
observations   of   the   learned   Reference   Court   are 
contrary   to   the   record   as   evidence   of   Mahadeo 
discussed   above   illustrate   that   land   subject   of 
Land Reference No.143/1991 is close by, acquired 
for the same project.     When the competent Court 
awarded Rs.24,000/­ per acre for similarly placed 
agricultural property, there could not have been 
any injunction for the learned Reference Court to 
act in tune thereof.  Judgment in LAR No.143/1991 
was not a surmise or guess work but evidence was 
discussed   in   said     judgment.       Again,   sale 
instances were placed before the Reference Court, 
however, they are not taken up in tune with the 
price   fetched   by   the   legitimate   sellers   of   the 
property situate in same village.


Apex   Court   in   the   matter   of  Mehrwal 
11.

Khewaji   Trust   Vs.   State   of   Punjab   (2012   5   SCC 
432)  dealt   with   a   situation   in   respect   of   land 
References   under   Section   18   of   the   Land 
Acquisition Act.   The Apex Court has observed, 
"
It is clear that when there are several exemplars
with reference to similar lands, it is the general rule
that the highest of the exemplars, if it is satisfied, that
accepted."
it is a bona fide transaction has to be considered and
"
Hon'ble Supreme Court further observed, 
In our view, it seems to be only fair that where sale
deeds pertaining to different transactions are relied on
behalf of the Government, the transaction representing the
highest value should be preferred to the rest unless there
are strong circumstances justifying a different course. It
is not desirable to take an average of various sale deeds
placed
before
the
authority/court
for
fixing
fair
compensation."
In   the   matter   of  Sunder   v.Union   of   India 
( AIR 2001 SC 3516) (Constitution Bench) answered 
about liability of the State ­ acquiring body to 
pay interest.   It was observed, solatium paid on 
account   compulsory   acquisition   under   Section 
23(2) forms part of compensation awarded and the 
State is liable to pay interest at the rate of 9 
per cent on solatium. 

In (2002) 10 SCC 570 ( in the matter of Land 
Acquisition   Officer     vs.   Morisetty   Satyanarayana 
and others, Apex Court indicated in paragraph no.
6   that   the   appreciation   for   effecting   market 
value   and   its   determination,   in   normal 
circumstances, is by comparable sales method.
In   Nelson   Fernandes   and   others   Vs.   Special 
Land   Acquisition   Officer   (   (2007)   9   SCC   447), 
Hon'ble   Lordships   of   the   Supreme   Court 
reiterated, evaluation of evidence in respect of 
compensation   and   factors   to   be   considered   for 
assessing.       Apex   Court   has   also   observed   that 
the   purpose   of   acquisition   is   also   one   of   the 
factor to be considered.
In Thakur Kanta Prasad Singh V. State of 
Bihar (AIR 1976 SC 2219), Supreme Court explained 
meaning of the term " market value" to mean the 
price   that   a   willing   purchaser   would   pay   to   a 
willing seller for the property having due regard 
to   its   existing   condition   with   all   its   existing 
advantages   and   its   potential   possibilities   when 
laid   out   in   the   most   advantageous   manner 
excluding   any   advantage   due   to   the   carrying   out 
of   the   scheme   for   which   the   property   is 
compulsorily acquired. 

12.
Taking   conspectus   of   the   reported 
judgments of the Apex Court, the picture that has 

been painted before this Court demonstrates that 
Mahadeo   Bhalekar,   the   land   holder,   has   un­
erringly established proximity of the land, which 
was   subject   of   land   reference   No.143/1991 
(Judgment   Exh.29)   and   also   established   the 
proximity   of   land   subject   of   Exh.24,   survey   No.
57.         The   sale   deed   of   Exh.24   was,   indeed, 
proved by examination of attesting witness Suresh 
Shinde.   He has stated  that the distance of the 
land under sale deed Exh.24 and the land acquired 
is around 600 to 700 fts.  Thus, there is  little 
variance   in   the   narration   of   Suresh   and   Mahadeo 
about   situation   of   the   two   lands.   But   fact 
remains,   both   properties   situate   at   Masla   and 
were   acquired   for   same   project.     It   does   not 
reflect, the Reference Court in LAR No.143/1991 ( 
Exh.29) made award overreach to reality.
13.
The   agricultural   property   acquired 
belonging to the appellants, from the record was 
irrigated,   though   no   receipts   for   selling 
sugarcane was tendered.   However, it had a well, 
indicated   by   the   Special   Land   Acquisition 
Officer,   and   the   learned   Judge.     In   the 
situation, the award calls for modification. 
  
14.
The   appellants   in   LAR   No.141/1991   are 
entitled to receive enhanced compensation at the 
rate   of   Rs.24,000/­   per   acre   for   the   acquired 
land totally admeasuring 1 H. 96 R.   from Block 
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9
FA NO.532/1997
Nos.71­1/2,   72/2,   73/2,   74/2,   74/6   of   village 
Masla(Kd.). The appellants are also entitled for 
other   statutory   benefits   under   Land   Acquisition 
Act.   
The appeal partly allowed with costs.
Deficit Court fees be deposited. 
(K.U.CHANDIWAL)
JUDGE
  

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AGP/532­97fa 
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