FIRST APPEAL 387 of 1994 on 4 April 1991

ORAL JUDGMENT :

.Heard learned Assistant Government Pleader Mr. Kaldate for appellant and learned counsel Mr. Sakolkar for the respondents. All these appeals can be disposed of by common judgment as the Reference Court passed common judgment in four land acquisition references.

2. These are appeals preferred by the original respondent/State of Maharashtra challenging the judgment and award dated 04th April, 1991 passed by the 03rd Jt. Civil Judge Senior Division, Jalgaon in land acquisition references.

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The Special Land Acquisition Officer issued notification U/Sec. 4 of the Land Acquisition Act dated 11th October, 1983 for acquiring respondents/original claimants land from village Shindwadi and Deskebardi, Tq. Chalisgaon, Dist. Jalgaon for construction of percolation tank Daskebardi, Tq. Chalisgaon. Thereafter, the Special Land Acquisition Officer issued notification U/Sec. 6 of the Land Acquisition Act 1894 (hereinafter referred as the "Said Act") dated 27th March, 1986. After following due process of law Special Land Acquisition Officer declared award dated 31st July 1986 and awarded compensation at the rate of Rs. 7,500/- per hector in First Appeal No. 387/1994, at the rate of Rs. 7,000/- per hector in First Appeal No. 627/1994, at the rate of Rs. 9,000/- per hector in First Appeal No. 628/1994 and at the rate of Rs. 13,500/- per hector in First Appeal No. 626/1994.

4. Being aggrieved by the said award passed by Land Acquisition Officer, the respondents/original claimants preferred references U/Sec. 18 of the Land Acquisition Act. In the said references claimants in First Appeal No. 626/1994 claimed compensation at the rate of Rs. 22,000/- per hector, in First Appeal No. 627/1994 at the rate of Rs. 12,000/- per hector, in 5 F. A. No. 387/1994

First Appeal No. 387/1994 at the rate of Rs. 12,000/- per hector and in First Appeal No. 628/1994 at the rate of Rs. 15,000/- per hector.

5. The Reference Court partly allowed the references preferred by the respondents/original claimants and awarded compensation in respect of acquired land in First Appeal No. 626/1994 at the rate of Rs. 52,500/- per hector for Bagayat land, in First Appeal No. 627/1994 at the rate of Rs. 35,000/- per hector for Jirayat land, in First Appeal No. 387/1994 at the rate of Rs. 35,000/- per hector for Jirayat land and in First Appeal No. 628/1994 at the rate of Rs. 35,000/- per hector.

6. Being aggrieved by the judgment and award passed by the Reference Court dated 04th April, 1991 the appellant/State of Maharashtra preferred these first appeals.

7. The learned Assistant Government Pleader Mr. Kaldate appearing on behalf of appellant submits that the Reference Court erred in coming to the conclusion that the respondents/original claimants are entitled to enhanced compensation in respect of acquired land. He submits that sale 6 F. A. No. 387/1994

instance which was relied upon by the learned Judge is of small piece of 30R land from the adjoining village, wherein right to well water to the extent of 19 paisa was also included and said piece of land was purchased for Rs. 13,000/-. He further submits that the respondents/original claimants failed to adduce any other reliable evidence to show that they were entitled enhanced compensation in respect of acquired land.

8. On the other hand learned counsel Mr. Sakolkar, appearing on behalf of respondents/original claimants submits that the Reference Court rightly relied on the sale instance dated 12.06.1981 at Exhibit 16 and the evidence of the claimants was sufficient for coming to the conclusion that claimants are entitled to enhanced compensation in respect of the acquired land. He submits that no one entered into witness box on behalf of appellant/State of Maharashtra to show that the compensation awarded by the Special Land Acquisition Officer in award dated 31st July, 1986 was as per the prevailing market rate on the date of issuance of notification U/Sec. 4 of the said Act. Therefore, there is no substance in all these appeals preferred by the appellant and they are liable to be dismissed with costs.

9. I have gone through the papers and record and proceedings of present appeals. The point arising for decision in these appeals is :

Whether the compensation awarded by the Reference Court is excessive ?

10. In these matters the respondents/original claimants mainly relied on sale instance dated 12th June, 1981 in respect of 30R land from gat No. 103/B of village Kalwadu. 30R's land was sold for Rs. 13,000/- i. e. Rs. 43,333/- per hector. The reference Court while relying on the sale instance deducted Rs. 8,333/- towards right of well water to the extent of 19 paisa. Therefore, the Reference Court considered the market rate of sale instance dated 12th June, 1981 as Rs. 35,000/- per hector for Jirayat land. The Reference Court on the basis of this sale instance held that market value of Bagayat land should be Rs. 52,500/- i. e. one and half times of Jirayat land.

11. The claimants in their evidence categorically stated what was the prevailing market rate of the acquired land in the year 1983 and 1984. They further stated that they were relying on 8 F. A. No. 387/1994

this sale instance from other village because sale instances for that period were not available from the same village from where the lands were acquired for public purpose.

12. The question of fixation of market value is a paradox which lies at the heart of the law of compulsory purchase of land. The Apex Court in the matter of Land Acquisition Officer v. Jasti Rohini reported in (1995) 1 SCC 717 held that market value of the acquired land is to be determined by Reference of the price which the land gets if sold in the open market by a willing seller might reasonably expect from the willing purchaser. It is further held by the Apex Court that the question of fixation of market value of the acquired land is to be determined on evidence on record. Part of para 6 of the judgment reads thus :

The question of fixation of market value is a paradox which lies at the heart of the law of compulsory purchase of land. The paradox lies in the facts that the market value concept is purely a phenomenon evolved by the courts to fix the price of land arrived between the hypothetical willing buyer and willing seller bargaining as prudent persons without a medium (sic modicum)of constraints or without any extraordinary circumstances. But the condition of free market is the very opposite of the condition of the compulsory purchase which is ex hypothesis a situation of constraints. Therefore, to say, that for compulsory purchase, compensation is to be assessed and market value is to be determined in that state of affairs has to be visualised in terms by its direct opposite. To solve the riddle, courts have consistently evolved the principle that the present value as on the date of the compulsory acquisition comprised of all utility reached in a competitive field as on the date of the notification and the price on which a prudent and willing vendor and a similar purchaser would agree.The value of the land shall be taken to be the amount that the land if sold in the open market by a willing seller might be expected to realise from a willing purchaser. A willing seller is a person who is a free agent to offer his land for sale with all its existing advantages and potentialities as on the date of the sale and willing purchaser taking all factors into consideration would offer to purchase the land as on the date of the sale. Future suitability or adaptability of the land for any purpose shall not be taken into account. Thecompensation must, therefore, be determined by reference to the price which a willing vendor might reasonably expect to obtain from a willing purchaser ason the date of the notification published under Section 4(1). The disinclination of the seller to part with his land and the urgent necessity of the vendee to purchase the land must, alike, be disregarded and neither of them must be considered as acting under compulsion.

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10 F. A. No. 387/1994

involves consideration of the price which a hypothetical willing purchaser can be expected to pay for the lands in the existing use as well as relatable potentialities. The acid test is in the arm-chair of the willing vendor would offer and a prudent willing buyer, taking all relevant prevailing conditions of the normal market, fertility of the land, location, suitability of the purpose, it was purchased, the nature of the land, the crops raised and the nature of the income likely to be derived from the lands, the expenditure to be incurred for raising the crops and the net profits etc. would be the relevant factors in arriving at the net market value and if evidence is adduced in that behalf, the market value need to be determined. In present cases Reference Court rightly relied upon sale deed dated 12th June, 1981 at Exhibit 16.

14. Taking into consideration that the Reference Court while determining the market value relied upon the sale deed put forth by the claimants, after necessary deduction for the small area and the well water facility, arrived at the market value of acquired land; on the contrary appellant lead no evidence to determine the makret value of acquired land on the date of notification U/Sec. 4 of the said Act. I do not find any reason to 11 F. A. No. 387/1994

interfere the judgment and award passed by the Reference Court. The first appeals preferred by the State of Maharashtra are dismissed.

15. No order as to costs.

[K. K. TATED, J.]

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