1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
FIRST APPEAL NO. 486 OF 2000
ALONG WITH
FIRST APPEAL NOS. 487, 488, 489, 490, 491, 492, 493, 494 AND
495 OF 2000
AND
CIVIL APPLICATION NO.3131 OF 2004
IN
FIRST APPEAL NO.488 OF 2000
ig AND
CIVIL APPLICATION NO. 7162 OF 2000
IN
FIRST APPEAL NO. 492 OF 2000
FIRST APPEAL NO. 486 OF 2000
IN
L. A. R. NO. 431 OF 1993
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
Dnyaneshwar Disanrao Phadtare )
Age 38 yrs., Occ.: Agriculture )
R/o Koregaon Bhima, Tal. Shirur )
District Pune ).. RESPONDENT
ALONG WITH
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2
FIRST APPEAL NO. 487 OF 2000
IN
L. A. R. NO. 424 OF 1993
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
1) Namdeo Mahipati Salunke )
Age Major, Occ.: Agriculture )
2) Amrute Mahipati Salunke
Age Major, Occ.: Agriculture
)
)
Both R/o Koregaon Bhima, Tal. : Shirur )
District : Pune. ).. RESPONDENTS
WITH
FIRST APPEAL NO. 488 OF 2000
IN
L. A. R. NO. 425 OF 1993
WITH
CIVIL APPLICATION NO. 3131 OF 2004
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
Bapurao Khanoji Gavhane )
Age 55 years, Occu.: Agriculture )
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3
R/o Koregaon Bhima, Tal.: Shirur )
Dist. : Pune. ).. RESPONDENT
WITH
FIRST APPEAL NO. 489 OF 2000
IN
L. A. R. NO. 427 OF 1993
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
Devram Raghunath Dherange
ig )
Age Major, Occu. : Agril. )
R/o Koregaon Bhima, Tal. Shirur )
District : Pune. ).. RESPONDENT
WITH
FIRST APPEAL NO. 490 OF 2000
IN
L. A. R. NO. 428 OF 1993
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
Sopan Vithu Dharange )
(Deceased through his legal heirs) )
1) Kacharu Sopan Dharange )
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2) Suman Kisan Taware )
3) Mrs Vimal Sakharam Abhale )
R/o Koregaon Bhima, Tal. Shirur )
District : Pune. ).. RESPONDENTS
WITH
FIRST APPEAL NO. 491 OF 2000
IN
L. A. R. NO. 429 OF 1993
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
Vithoba Sadashiv Gavhane )
Age Major, Occu. : Agril. )
R/o Koregaon Bhima, Tal. Shirur )
District : Pune. ).. RESPONDENT
WITH
FIRST APPEAL NO. 492 OF 2000
IN
L. A. R. NO. 432 OF 1993
WITH
CIVIL APPLICATION NO. 7162 OF 2000
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
Daulata Jayanwanta Gavhane )
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Age 60 Yrs., Occ.: Agriculture )
R/o Koregaon Bhima, Tal. Shirur )
District : Pune. ).. RESPONDENT
WITH
FIRST APPEAL NO. 493 OF 2000
IN
L. A. R. NO. 433 OF 1993
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
Maruti Baban Dharange
ig )
Age 65 Yrs., Occ.: Agril. )
R/o Koregaon Bhima, Tal. Shirur )
District : Pune. ).. RESPONDENT
WITH
FIRST APPEAL NO. 494 OF 2000
IN
L. A. R. NO. 434 OF 1993
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
1) Popat Baburao Kashid )
Age 45 years, Occ.: Agri. )
2) Jagannath Baburao Kashid )
Age 42 years, Occ.: Agri. )
R/o Koregaon Bhima, Tal. Shirur )
District : Pune. ).. RESPONDENTS
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WITH
FIRST APPEAL NO. 495 OF 2000
IN
L. A. R. NO. 436 OF 1993
The State of Maharashtra )
(Through the Special Land Acquisition )
Officer, No. 22, Pune.) ).. APPELLANT
Versus
Shankar Ganu Dharange )
Age Major, Occu. : Agri.,ig
R/o Koregaon Bhima, Tal. Shirur
District : Pune.
)
)
).. RESPONDENT
Mr A R Patil, Assistant Government Pleader, for the Appellants.
Mr P N Joshi for the Respondents.
CORAM : SWATANTER KUMAR, C.J. AND
A.P. DESHPANDE, J.
JUDGMENT RESERVED ON : 9TH SEPTEMBER 2008
JUDGMENT PRONOUNCED ON : 8TH OCTOBER 2008
JUDGMENT (PER SWATANTER KUMAR, C.J.)
By this judgment, we are disposing of ten First Appeals
filed by the State of Maharashtra against the Judgment and Award
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dated 9th August 1999 passed by the 4th Joint Civil Judge, Senior
Division, Pune, in Land Reference Nos.431 of 1993. By the said
Judgment, the Reference Court had disposed of nine Land
References, namely, Land Acquisiution Reference Nos.434 of 1993,
425 of 1993, 427 of 1993, 428 of 1993, 429 of 1993, 432 of 1993, 433
of 1993, 434 of 1993 and 436 of 1993.
2.
Civil Application No. 3131 of 2004 is filed in First Appeal
No. 488 of 2000 for bringing on record the legal heirs of Claimant.
There is no opposition. Hence, Civil Application allowed. Necessary
steps be taken for bringing the legal heirs on record. Civil Application
is disposed of accordingly.
3. The Appropriate Government issued a Notification under
Section 4 of the Land Acquisition Act, 1894 (hereinafter referred to as
“the Act”) on 27th July 1988 declaring its intent to acquire nearly 182
Hectares and 98 Ares of land falling in the revenue estate of the
village Koregaon Bhima, Taluka Shirur, District Pune. The land was
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sought to be acquired for a public purpose, namely, “Rehabilitation of
Chasakman Project Affected Persons”. Last of the Notification was
published on 10th October 1988, while the same was published in the
newspaper on 3rd October 1988. However, Corrigendum to the
Notification was issued on 8th/9th September 1989, which
Corrigendum was published in official Gazette on 5th October 1989.
After issuance of declaration under Section 6 of the Act and following
the prescribed procedure of law, the Special Land Acquisition Officer
(SLAO) made his Award under Section 11 of the Act on 28th February
1991. While categorizing the land into different groups, the said
Officer awarded following compensation :
——————————————————————
Group Jirayat Bagayat
——————————————————————
I Rs.14,500/- p.h. Rs.21,750/- p.h. II Rs.19,000/- p.h. Rs.28,500/- p.h. III Rs.25,000/- p.h. - IV Rs.30,000/- p.h. Rs.45,000/- p.h.—————————————————————–
4. Notices under Section 12(2) of the Act is stated to have
been served upon the Claimants on 14th March 1991. Dissatisfied
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9with the extent of compensation awarded to the Claimants by the
Collector, they filed References under Section 18 of the Act claiming
compensation at the rate of Rs.2,50,000/- per hectare. These
Reference were referred to the Reference Court. These References
were tried in accordance with law and the Reference Court vide its
Award dated 9th August 1999 enhanced the compensation payable to
the Claimants and granted the following relief to the Claimants :
“1.
2.
Reference is allowed with costs.
Opponent do pay Rs.4,30,000/- to the claimant
for the land acquired 2 Hec. Gat No. 211 situated at
Village Koregaon Bheema Tal. Shirur District Pune.
The amount awarded by the court Rs.50,000/- amount
paid by S. L. O. is Rs.50,000/-. Hence the amount
payable Rs.4,50,000/- @ Rs.2,50,000/- per hect.3. Opponent do pay solatium @ 30% of the market
value and 12% component from the date of notification
till the date of award.4. Opponent do pay interest @ 9% p.a., from the
date of possession for the period of 1 year and 15%
p.a. From the date of expiry of 1 year till the amount
paid by S. L. O. and court of the L. A. Act.5. Award be drawn accordingly after depositing the
deficit court fees. ”5. Before the Reference Court, to substantiate their claim for
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10awarding of higher compensation, the Claimants had stated that their
lands are included in D-Zone (which is called as Industrial Zone) and
were so covered even in the year 1983 at the time of issuance of the
Notification under Section 4 of the Act. The land thus should have
been treated as non-agricultural land and compensation should have
been awarded to them on such basis. The Claimants had led oral
and documentary evidence. Some of the Claimants examined
themselves as their witness and had averred with regard to the
location and potential of the land. PW-1 Dnyoba Kisanrao Phadatare,
whose statement was recorded at Exhibit 8, stated with regard to
various matters which had a direct bearing on enhancement of the
compensation. The Claimants had produced various sale instances to
substantiate their claim for higher compensation. State hardly led any
evidence to refute the claim of the Claimants. The Reference Court in
its judgment had framed four issues which were answered in the
affirmative and on the basis that the Claimants had proved that
compensation awarded by the Collector was improper and inadequate
keeping in view the prevalent market value of the land. The
Reference Court considered the following sale instances adduced by
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11the Claimants :
———————————————————————————————
—
Sr. Document Area of Price as Date Rate Price Total rate
No. at Exh. Land per Sale of per Incre- per Hec.Deed Deed Hec. -sing Relevant Rate————————————————————————————————————
1. 22 13.75 R 66600 484800 19.11.87 12% 542416/-
2. 23 80 R 170000 212500 30.5.86 24% 263500/-
3. 24 41 R 96000 234146 21.7.89 ig 234146/- 4. 26 19 R 32500 171052 21.8.85 233630/- 5. 27 19 R 32500 171051 21.8.85 232630/- -------------------Total average price of 5 Hec. Land Rs.1503322/-
——————-
So price per hectare is Rs.3,01,064/-
————————————————————————————————————
Taking an average of the above sale instances and granting 12%
increase per year in the market price, while following some of the
judgments of this and another High Courts, the Reference Court
proceeded to record that the market value of the land would be
Rs.2,50,000/- per hectare and granted other statutory benefits to the
Claimants.
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126. The correctness and legality of the findings recorded by
the Reference Court are questioned before us primarily on the ground
that the findings are not supported by any evidence and the
Reference Court has applied the “principle of average” which could
hardly be applied to the facts and circumstances of the present case
and that the sale instances relate to small pieces of land and,
therefore, there ought to have been deduction made on account of
development and large acquisition.
7. As already noticed, according to the Claimants, their lands
are non-agricultural lands and they are owners of small pieces of land
and the land was being acquired for resettlement scheme. There was
hardly any occasion for applying the principle of deduction to the
amount of compensation determined by the Court. Further, it is the
stand of the Claimants that various lands which had been taken into
consideration in determining the average price of the land are the
ones which are similarly situated and are at somewhat similar location
and have same potential. We are unable to accept the contention on
behalf of the State that the findings of the Reference Court are based
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13on no evidence or can be held to be perverse finding on appreciation
of evidence. It is more than evident from the record that the
Claimants had led documentary and oral evidence to prove their case
for enhancement. It is the strange stand of the State that these
findings are based on no evidence in face of the fact that they chose
not to produce any evidence, documentary or oral. The Claimants
examined themselves to give proper description of their lands.
8.
The learned Counsel appearing for the State places
reliance upon the judgment of the Supreme Court in the case Printers
House Pvt. Ltd. vs Mst. Saiyadan (Deceased) by Lrs. and others.(1994) 2
SCC 133, to contend that the sale instances have to be genuine and
only comparable sale instances can be relied upon. This judgment
hardly supports the case of the State. The principle stated in this
judgment is clear that market value of the land has to be based upon
comparable sale instance or award. In fact, in this very judgment, the
Court clearly stated the principle that the value of the land can be
determined by adding or deducting the price on reasonable basis.
Furthermore, it is a settled principle of law that the Court has to apply
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14some kind of guess work while determining the market value of the
land.
9. In the case of The State of Maharashtra vs Trimbak Joma
Thakur and others, 2007 (5) Mh. L. J. 187, it has been stated that
the Court has to apply certain guesswork within its reasonable limits
to determine the fair market value of the acquired land. The Court in
the said case held as under:
“The court would have to apply the principle of guess
work which is permissible in law, particularly keeping in
mind the fact that there are no direct sale instancesavailable on record of the acquired lands or adjacent
villages. Thus, the Court would have to essentiallyapply some guess work to determine the fair market
value of the lands. In the case of Risal Singh and ors.
(Sh) vs Union of India and anr. reported in 2006(VII)
AD(Delhi) 665, the Court has taken a view on theabove principle and held as under:
“In so far as the rejection of sale deeds Ex
PW1/1 & Ex.PW2/1(Ex PW1/3) by the
learned Reference Court is concerned, wecan hardly find any fault in the impugned
judgment. But there could be no reason
before the reference court for not relying
upon Ex. PW1/2 which related to a sale
transaction of village Bamnoli and was sale::: Downloaded on – 09/06/2013 13:57:13 :::
15of a reasonably large piece of land
admeasuring about 3 bigas 15 biswas. Thereasoning given by the learned reference
court for rejecting this evidence is notsustainable in law. The best method of
computing the compensation payable to
the claimants is the sale instances relating
to the land in question. A willing buyer anda willing seller would offer what price of the
land at the time of acquisition or
immediately thereto would be a definite
guide for determining the fair market valueof the land on the date of the notification.
Once such an evidence is available on
record, there is hardly any need for the
court to advert itself to any other method of
computation. This principle was clearlystated by the Supreme court in case of
ONGC Ltd vs Sendhabhai Vastram Patel and
others 2005(VII)AD (SC) 126 = (2005) 6
SCC 454. The Supreme Court … also
clearly stated that the court has to applysome kind of guess work in computing the
compensation payable to the claimants for
acquisition of their respective lands. It
may not be always possible to grant
compensation arithmetically correct to thedecimals. The counsel appearing for the
claimants referred to various judgments of
this court wherein for acquisition of land in
village Bamnoli or other surrounding
villages during the year 1982-86,compensation was awarded by the court
for acquisition of the agricultural land @
Rs.21,000 per bigha to Rs.47,000 per
bigha and even more and submitted that in
the present case, they would be entitled to
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16at least. They claim enhancement even on
Ex.PW1/2 as it is stated to be a sale deedmore than six months prior to the date of
acquisition. We have already noticed thatthe reference court could not have
outrightly rejected Ex PW1/2 as it was a
sale instance of a reasonably large piece of
land and the sale transaction had beenexecuted more than six months prior to the
date of notification. There was no reason
for the court and in fact no evidence had
been led that the transaction Ex PW1/2was a sham transaction and its
genuineness was doubted for any reasonwhatsoever. The judgments of this court in
RFA 565/99 and 481/99 are a merely
guiding factor and cannot be taken as adeterminative basis in regard to fixation of
compensation payable to the claimants.
These awards and judgments relate to
different villages which may be adjacent
but once the sale deed of the same villageis available, we find that it would be
unnecessary to travel into this controversy”.
(emphasis supplied)
Reference can also be made to the case in Jas Rath vs
Union of India, 2006(VII) A.D. Delhi 284, in this regard.10. As already noticed, the Claimants examined as many as
five witnesses. Some of them were the claimants, while others were
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17the witnesses who had been produced to proving the sale instances
Exhibit 22 to Exhibit 24 and Exhibits 26 and 27. The Witness
Katawallia Keshavan while proving Exhibit 22 referred to the sale
instance which was registered on 19th November, 1987 wherein the
land admeasuring 1375 sq. metres ( i.e. 13.75 R) in the village
Koregaon Bhima was sold for a consideration of Rs.66,600/-.
11.
Cumulative effect of the entire evidence is to beappreciated by the Court. The Court in the present case took the
average of various sale instances which admittedly relate to the same
village and after giving the increase on the respective transactions
determined the price. Thus, it cannot be said that the findings are
perverse.
12. Equally true is the principle that it is not always necessary
for the Court to apply certain deductions to the compensation
awarded to the Claimants of the land. It is undisputed that all the
Claimants are owners of small pieces of land and they are to be
compensated on the basis of the price of their land and the mere fact
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18that the State Government has chosen to acquire larger chunk of land
be per se would not diminish the value of the respective lands.
13. It is a matter of common knowledge that there are hardly
money transactions relating to sell of larger piece of land at villages.
Normally, the lands bought and sold are of comparatively small sizes.
The rights of the Claimants have to be determined vis-à-vis the lands
that they own and possess.ig In the absence of evidence to the
contrary, the claim put forward by the Claimants appear to be
reasonable and it may not be necessary to apply deductions to the
price indicated in the sale instances. A reference can be also be
made to a judgment of the Division Bench of this Court in the case of
The State of Maharashtra vs Santaram Mahadu Pingle and others, 2008
(3) Bom. C.R. 715, where the Court observed :
“The Supreme Court has consistently held that the
Court should apply principle of deduction on the basisof the sale instances of small piece of lands.
Reference can be made to the judgment of the
Supreme Court in the cases of (i) Krishi Utpadan
Mandi Samiti Sahaswan, District Badaun vs Bipin
Kumar and another, (2004) 2 SCC 283, and (ii)::: Downloaded on – 09/06/2013 13:57:13 :::
19Lucknow Development Authority vs Krishna Gopal Lahoti
and others, 2007 (12) SCALE 685. Element ofdiscretion has been vested in the Courts while
determining the extent of deduction that could beapplied in such cases. In the case of Atma Singh vs
State of Haryana, (2008) (2)SCC 568, the Supreme
Court held that it is not mandatory to apply deduction
on the ground of sale instances being of small plotsbut it will have to be determined on the facts of each
case.”14. Equally without merit is the objection of the State that the
Reference court could not have determined the price by applying the
principle of averages. Though to some extent, it may be correct that in
the present case as the sale instance of the current year and times
which was quiet near to the date of notification were available, thus
the Reference Court will have to rely simplicitor on those sale
instances and could have come to the appropriate market value of the
acquired land, applying the principles of averages by itself would not
render the judgment of the Reference Court bad. There cannot be a
straight-jacket formula which will be uniformly applicable to all cases.
There is no prohibition in law that the Reference Court cannot apply
the principle of averages while determining the fair market value of
the land. Reference can be made to a recent judgment of a Division
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20Bench of this Court in the case of . Santaram Mahadu Pingle’s
case(supra), where the Court held as under:
“13. ….. It is a settled principle of law that principle of
average can be applied by the Court in determining thefair market value of the land where the sale
consideration are varied in different sale instances duly
proved by the parties on record and there is no
challenge to the bona fide of such sale consideration.The Supreme Court in the case of (H.P. Housing
Board Vs. Bharat S. Negi and others), 2004 DGLS 50(soft) : 2004(2) S.C. C. 184: A.I. R. 2004 S.C. 1800
took the view that it not necessary to take into
consideration the average of the relevant saleinstances and arrive at a fair market value of the
acquired land. Various High Courts have also taken
the view that the principle of average can be applied
safely to determine the market value. Reference canalso be made to the judgment in the case of ( Shanti
Devi Vs. State of Harayana ), 1992(2) P.L. R. 640.The Court held as under:
“In fact, in the recent time, the Hon’ble
Supreme Court has approved the principle ofaverage for determining the fair market value
of the land than any other principle
concerning the fixation of fair market value of
the land. In this regard, reference can be
made to the case titled { Baldev Singh Vs.State of haryana and another), R.F. A. No.
965 of 1992, decided on 14.1.1999, wherein
the Court held as under:“In a very recent judgment the Hon’ble
Supreme Court of India in the case of::: Downloaded on – 09/06/2013 13:57:13 :::
21(Kanwar Singh and others Vs. Union of
India ), 1998 DGLS 1010 (soft): J.T. 1998(7) S.C. 397 : 1998(8) S.C. C. 136: A.I.R.
1999 S.C. 317 observed that Courts whileapplying the market value of the land in
the adjacent villages or revenue estates
must cautiously follow the same as it is not
necessary that compensation granted inadjacent villages would itself be a deciding
factor for other lands. The Supreme Court
also applied the principle of averages/
mean to get the correct market value ofthe acquired land with some element of
conjectures or guess in the case of(Krishna Yachendra Bahadurvaru Vs.
Special Land Acquisition Officer, City
Improvement Trust Board, Bangalore andothers), 1979 DGLS 38 (soft) : A.I. R. 1979
SC. 869 : 1979(4) S.C. C. 356.”
15. As we have already indicated that the learned Reference
Court took the average of price of sale instances right from the years
1985 to 1987 from sale deeds Exhibits 22 to 24 and Exhibits 26 and
27 and has determined the market price at Rs.3,01,064/-. However,
thereafter, the Reference Court reduced the same to Rs.2,50,000/- as
that was the maximum amount claimed by the Claimants. Thus, the
Court has already granted to the Claimants an amount lesser than
what in fact had been determined in the judgment under appeal.
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22
16. Now we will proceed to discuss the argument that learned
Reference Court could not have taken recourse of the principle of
averages. Even it is assumed to be valid argument, we can hardly find
any fault in the valuation arrived at by the Learned Reference Court.
Exhibit-24 would be the most appropriate and relevant sale instance
and which is an admissible piece of evidence, which could be taken
into consideration by the Learned Reference Court while determining
the issue in relation to the valuation of the market value of the
acquired land. Exhibit-24 is the sale instance vide which the land
admeasuring 0.41 R was sold for a sum of Rs.96,000/- on 21st July,
1988 giving a value of Rs.2,34,146/- Per Hectare. Section 4
Notification had been issued on 27th July, 1988. This sale instance is
just few day’s earlier to the issuance of the said Notification which is
the relevant date for deciding the compensation payable to the
Claimants.
17. On the other hand, vide Exhibit-22, the land admeasuring
about 13.75 Ares was sold for a consideration of Rs.66,000/- on 19th
November, 1987 giving a value of Rs.5,42,416/- Per Hectare. Both
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23
these Exhibits are relevant and comparable piece of evidence. The
Court cannot ignore either of them and the sale instances which
reflect a higher valuation would normally be taken into consideration
by the Court as it is the case of compulsive acquisition. Unless and
until the sale instance was bogus, the genuineness of the said
consideration could not be questioned. Vide Exhibit 22, Bombay
Industrial Enterprises has sold the land to M/s. Sunsuvi Cable Pvt.
Ltd. These are the transactions between the two limited companies
and no suggestion was made in regard to the genuineness of the said
transactions. While under Exhibit-24, it was an agricultural land, there
under Exhibit-22 it was non-agricultural land. While Exhibit 22
reflects the value of developed plot (non-agricultural plot) but at the
same time indicate the location and potential of the land. Exhibit 24
could be the right guide for determining the market value of the land.
The Claimants would certainly be entitled to some advantage of
higher value reflected in Exhibit 24. Taking Exhibit 22 as the basis,
the valuation fixed by the learned Reference Court by taking average
can hardly be faulted with and the said compensation would even be
otherwise justified. We have already held that certain guesswork
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24
would have to be applied by the Court and deduction in the present is
not justified on any ground as the Respondents did not bring any
evidence on record to show that the deduction was called for either on
account of development and for that matter on any other ground.
Thus, we find no reason to interfere in the market value assessed by
the Learned Reference Court in the judgment challenged in the
present appeal. Resultantly, all the First Appeals filed by the State
are dismissed, however, leaving the parties to bear their own costs.
18. In view of the dismissal of First Appeal No.492 of 2000,
Civil Application No.7162 of 2006 does not survive and the same is
disposed of being infructuous.
CHIEF JUSTICE
A. P. DESHPANDE, J.
July08/judgment/fa486-00.sxw
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