JUDGMENT
A.B. Naik, J.
1. These First Appeals are filed by the State of Maharashtra challenging the judgment and award passed by the learned Civil Judge, Sr. Dn., Latur on 28th February, 1984. By notification issued under Section 4 of the Land Acquisition Act (hereinafter referred to “the Act”) published on 24th August, 1978, the lands of the claimants as indicated below were notified for acquisition for Talegaon Percolation Tank and following lands covered in this group of appeals, situated at village Talegaon Tq. Ahmedpur Dist. Latur were taken in possession :
——————————————————————————–
Sr. No. F. A. No. LAR No. Gut No. Extend of land
acquired H. Areas
--------------------------------------------------------------------------------
1. 161/86 27/81 27/3/C 5 -20
2. 162/86 73/81 24 2 -30
3. 163/86 74/81 3 1 -40
4. 164/86 75/81 27/A/C 1 -10
5. 165/85 76/81 27/B/2 2 -20
6. 166/86 77/81 27/C 2 -9
7. 167/86 214/82 28/1 1 -26
--------------------------------------------------------------------------------
2. After issuance of the notification under Section 4, preliminary enquiry was conducted. After conducting the preliminary enquiry, the Land Acquisition Officer, Osmanabad by the award dated 19th March, 1981, determined the market value and accordingly awarded compensation to all the claimants at Rs. 1500 per acre. The claimants were not satisfied with the award. Therefore, they requested the Special Land Acquisition Officer, Osmanabad to make a reference to the Civil Court for determination of market value by exercise of the powers under Section 18 of the Act. Accordingly, the Special Land Acquisition Officer, Osmanabad made a reference to the Civil Court.
3. On reference, the claimants before the Civil Court contended that the market value as determined by the Land Acquisition Officer is inadequate and does not reflect the correct market value of the land on the date of notification. All the claimants have filed separate claims for enhancement raising identical pleas regarding the market value.
4. At the outset, it is made clear that in all these References though separate and individual claims are filed, but the contentions are same. Therefore, it is not necessary for me to burden this judgment by referring the contentions of all the claimant, but suffice to state the averment in Land Acquisition Reference No. 72/82. The claimant has contended that possession was taken by the Government on 24th August, 1978. He has submitted oral claim and statement of claim with documentary evidence, after receiving the notices under Section 9 of the Land Acquisition Act before the Acquisition Officer. He claimed the compensation at Rs. 5000 per acre. But the Land Acquisition Officer has awarded compensation at the rate of Rs. 1500 per acre. The claimant in the application stated the market value of Survey No. 27/B/C on the date of notification is not less than Rs. 5000/ -. It is contended that the acquired land having black cotton soil, the depth of the black cotton soil was more than 25 feet. The land is situated on the bank of river and the claimant was getting Bagayat as well as seasonal crops by using the river water. He also claimed that he was taking crop such as sugarcane, chilly, paddy, wheat, groundnut and jowar etc. The claimant claimed that he was getting annual income of Rs. 3000 from the Bagayat and 2000 from seasonal crop per acre per year. It is stated that though the documents were produced before the Land Acquisition Officer, he has not considered the evidence. The Land Acquisition Officer has not granted adequate compensation to the acquired land. Therefore, the claimant contended that he is entitled for compensation of the acquired land at Rs. 5000 per acre along with solatium and interest etc. All the references came to be opposed by the State Government by filing common say. By consent of the parties, the evidence was recorded in Ref. No. 72/1981 and all the references were tried together and disposed of by common judgment.
5. The claimants in order to support their claim and in order to get the enhanced compensation, have produced oral as well as documentary evidence on record. The claimants have filed revenue record i.e. 7/12 extract of the acquired lands and relied on the three sale instances. The oral evidence of the claimants consisting of Ganpat Bhimrao Shelke (Witness No. 1) claimant in Land Acquisition Reference No. 76/81; Pundlik Bhaurao Shelke (Witness No. 2) Claimant in Land Acquisition Reference No. 73/1981; Dashrath Shelke (Witness No. 6) claimant in Land Acquisition Reference No. 75/81. The other claimants, namely, Pundlik Bhaurao Shelke, Balaji Ramrao, Keshav Khandu and Bapurao have not stepped into witness box to establish their respective claims, but stated that the evidence which was recorded in main Reference i.e. L.A.R. No. 72/81 may be read and considered and other References also. The learned Civil Judge on considering the evidence that has been produced by the parties has enhanced the compensation by awarding Rs. 3000 over and above the compensation that was awarded by the Land Acquisition Officer.
6. Being aggrieved by the said order the State of Maharashtra has filed these appeals. In all the appeals, Mrs. A. V. Gondhalekar, learned A.G.P., appeared for the appellants and Shri V. C. Solshe for respondents/ claimants.
7. The learned Civil Judge while deciding the References has granted rental compensation at the rate of 6 1/2 % from the date of dispossession i.e. 24th August, 1978 to 31st Dec., 1978 and the rate of 8 per cent from 1st January, 1979 till declaration of the award i. e. 19th March, 1981. There is no reason assigned by the learned Civil Judge as to why the rental compensation has been awarded; but the learned Counsel for the claimant was not able to show any provision in the Land Acquisition Act, which entitled the Court to award rental compensation. Section 28 and 34 takes care of loss of possession which empowers the Court or the Collector/Land Acquisition Officer to grant interest from the date of possession. Therefore, the award of rental compensation from date of possession as granted by the Civil Court is, thus, without any authority of law and that part of the order cannot be sustained and the learned Counsel for the claimants was not able to show that under which provision the rental compensation is granted, while awarding compensation of the land the Court is guided by the provisions of Sections 23 and 24 of the Act, that part of the order will have to be set aside. I now proceed to consider the contentions raised by the respective Counsels for the parties.
8. Learned A.G.P. contended that the evidence i. e. sale instances produced by the claimants are of the lands which are situated in another village, namely, Shirur Tajband. The learned A.G.P. contended that the claimants have not made any attempt to establish the similarity of the lands; in order to prove whether the lands covered by the sale instances can be considered to be comparable with the land under acquisition. The learned A.G.P. stated that burden of proof lies on the claimants to establish that the award passed by the Land Acquisition Officer is inadequate and does not reflect the correct market value on the date of notification. The learned A.G.P. contended that there is no justification for the learned Judge to enhance the compensation by Rs. 3000 per acre on the evidence which is produced by the claimants. She contended that before accepting the sale instances, the learned Judge should have considered whether the sale is genuine, whether the sale deeds are within the reasonable time of the issuance of notification and whether the lands covered under sale deeds and the acquired land has any similarity, such as, quality, advantages and disadvantages. In the absence of such evidence, the learned Judge should not have relied on the sale deed and enhanced the compensation. She further contended that all the claimants have not stepped into the witness box and they have not proved their case and, therefore, they are not entitled for any enhancement of the compensation. She contended that though all the lands are acquired by a single notification, but all the lands inter se are not similar. Therefore, all the claimants should have stepped in the witness box to prove their respective cases nor they have led any evidence to show that all their lands are similar. Therefore, she contended that granting uniform compensation to all the lands is not proper. She further contended that no claim is made by the claimants pursuant to the notice under Section 9(2) of the Act before the Land Acquisition Officer and, therefore, in view of the bar imposed by Section 25(2) as then stood, the claimants are not entitled for enhancement of the compensation than that is awarded by the Land Acquisition Officer, She contended that Section 25 is a substantive in nature and not procedural one. Therefore, it was for the claimants to establish that, in fact, they have raised the claim by making written application to the Collector/L.A.O. But the claimants have not stated this aspect in the evidence but a statement appears in the Claim Petition that oral claim is made. She contended, therefore, the learned Judge should have considered this aspect of the matter and should have considered whether the claimants are entitled for enhancement of the compensation. 9. Contra, Shri Solshe, learned Counsel for the claimants/ respondents contended that the learned Judge on the evidence produced before him found that the sale instances which are produced, are genuine and the same can be compared with the lands under acquisition. He stated that all three vendors have stepped into the witness box. But there is no effective cross-examination, on any point, to dislodge their evidence. He contended that the lands covered by the sale deeds arc in the vicinity of the land under acquisition. The claimants who have stepped into the witness box have referred to the situation of the land acquired and land covered by the three sale instances. Therefore, the learned Counsel contended that the sale instances relied on by the claimants are comparable in all respects. He contended that all sale instances are prior to the issuance of the notification, just executed before a year or so, of publication of notification. He contended that Exh. 26 sale deed dated 7th July, 1977, and Exh. 27 sale deed dated 20th May, 1977 reflects the correct market value of the land and considering the area which is conveyed by the sale deeds. The sale deeds can be compared with the land under acquisition Exh. 23; dated 7th February, 1978. Therefore, the learned Counsel contended that all the three sale instance has to be considered as comparable to the land under acquisition and, therefore, the learned Counsel contended that the view taken by the leaned Judge is proper and required to be maintained. In the alternative, the learned Counsel contended that if this Court comes to the conclusion that the sale instances are not comparable, then the claimants have led evidence to show the annual yield of the acquired land. He contended that the evidence regarding annual yield as stated by the witnesses has gone unchallenged and considering the fact assuming that at least 50% of the annual income is to be spent for expenditure and the rest amount shall be treated as the net income and, therefore, he contended by multiplier of 15 years, the market value of the land be determined.
10. So far the contention that is raised by the learned A.G.P. about lodging the claim under Section 9, Shri Solshe, contended that this point was not raised before the Trial Court nor it is raised in those appeals taut the learned Counsel has argued the A.G.P. has taken a point at the time of argument. Shri Solshe contended that had this point been raised in the written statement, there would have been a issue and parties could have led evidence to establish the fact. Shri Solshe, stated that whether notice is served or not, has to be decided only on the basis of evidence led by the parties and it is not the pure question of law which can be decided on the basis of submission made by the Counsel. Therefore, he contended that this contention of the learned A.G.P. requires to be rejected.
11. Before adverting to the merits of the matter, I must note one thing, as learned A.G.P. had made submission about lodging the claim under Section 9(2) of the Act. The claimants have stated in para 3 of the Claim (Exh. 2), about the fact :
The claimant has submitted oral claim and statement of the claimant that documentary evidence after receiving the notice Under Section 9 of the Act before the Land Acquisition Officer for determination of the market value of the land.
But I find from the reply by the State that there is neither denial nor acceptance of this statement in the claim. As I have noticed that the denial is of general nature, there is no parawise reply or denial nor a specific statement is made, pointing out that on particular date, a notice Under Section 9 is sent to the claimants and they have received on a particular date. Be that as it may. Therefore, the submissions of the learned A.G.P. on the point of lodging the claim, will have to be considered on the basis of the pleadings at proper stage.
12. Shri Solshe, learned Counsel contended further that when the Reference were pending before the learned Civil Judge, the bill to amend the Land Acquisition Act was introduced in the Loksabha and it has become an Act on 26th Sept., 1984. The applicability of the amended Act, according to the Counsel, is no more res Integra, in view of the constitutional Bench Judgment of the Apex Court in the case of Union of India v. Raghubir Singh and K. S. Paripoornan v. State of Kerala . The law declared by the Apex Court applies in full vigour as such the claimants are entitled for enhanced statutory benefits. It may be stated at this stage that the learned A.G.P. has invited my attention to the recent judgment of the Apex Court in Judgment Land Acquisition Officer cum D.S.W.O. A. P. v. M/s B. V. Ready and sons (2002) Vol. 2 J. T. SC 54, where the Apex Court has considered the provisions of Section 9(2) and Section 25(2) and the effect of non lodging claim. The learned Counsel contended in this case also, the Apex Court has reiterated and re-affirmed the view expressed in Raghubir Singh’s case. The learned A.G.P. has placed reliance on this judgment to support her contention regarding granting of enhanced compensation to the claimants who have not made claim before Land Acquisition Officer. Shri Solshe when asked whether any of the respondents/claimants have filed cross-objection or independent appeal, claiming additional benefits which are not granted by the Civil Court. The learned Counsel has stated that the respondents have not chosen to file any application or cross-objection as contemplated under Order 41 Rule 22. In order to support this contention that the claimants can seek relief and claim benefit of amendment, Mr. Solshe relied on the judgments of the Apex Court . He contended that these are the statutory benefits for which it was not necessary for the claimants to raise any demand or file any claim as contemplated under Order 41 Rule 22 of the C.P.C. Therefore, the learned Counsel requested that his oral submissions to this effect be accepted as claim by this Court and grant the relief to the claimants. I will now consider the submission made by the respective Counsels. The submission has been referred to by me in the above paragraphs.
13. First of all, I will consider whether the claimants have discharged the burden to prove the market value of the land, the question regarding burden of proof is no longer an issue that is to be decided by this Court. The Apex Court in Manipur Tea Co. Private Limited v. Collector of Hailakandi has ruled thus :
The burden is on the claimants to prove by adducing cogent, reliable and acceptable evidence the market value under Section 23(1) of the Act. The burden does not shift over to the Government but it is the duty of the Court to assess the evidence adduced by the claimants and determine the compensation on the touchstone of prudent purchaser in the open market, i.e. whether he would offer market value at the rates proposed by the Court. The evidence has to be put to test whether the sale deed or the evidence adduced would offer the market value higher than that which has been determined by the Land Acquisition Officer. The compensation awarded by the Land Acquisition Officer is an offer that binds the Government but ii is not conclusive.
14. In view of the law laid down in Manipur Tea Co.’s case, to find out whether the burden is discharged by the claimants. Before analyzing the sale deeds and other evidence it will be appropriate to refer the law declared by the Apex Court underlying the principle of “Comparable Sales Method Valuation of Land” in case of Printers House Put. Ltd. v. Mst. Saiyadan . The Apex Court, ruled as follows :
7. Where there is evidence of sales or awards of land (s), which could be compared with the acquired land (s), the Court, as a matter of course, adopts the ‘Comparable Sales Method of Valuation of Land’ in preference to other recognised methods of valuation of land, such as ‘Capitalisation of Net Income Method’ or ‘Expert Opinion Method’ for determining the market value of the acquired land (s). Comparable Sales Method is the most favoured method, since the prices paid within a reasonable time in bona fide transactions of purchase or sale of the very acquired land or a portion thereof, or of the lands adjacent to those acquired and possessing similar advantages, could furnish to the Court the ‘price basis’ for determination of the market value of the acquired land, in that, there can be no better evidence of what the willing purchaser would pay for the acquired land if it had been sold in the open market at the time of publication of preliminary notification. Evidence of prices fetched by sales of lands similar to the acquired land will be taken by the Court to be the price which a willing purchaser would have paid for the acquired land, if the same had been sold to him in the open market. However, if the price under comparable sale is to be taken by the Court, as furnishing the ‘price basis’ for determination of the market value of the acquired land, the comparable sale must, firstly be genuine, secondly it must have taken place at a time proximate to the date of publication of the preliminary notification under Section 4(1) of the Act, thirdly the land sold under the sale must be similar to the acquired land, and fourthly the land sold under the sale must be in the vicinity of the acquired land. It has, therefore, to be noted that the location, size, shape, tenure, user or potentiality of land under comparable sale, if do not compare favourably with the acquired land, price fetched in comparable sale cannot furnish the price basis for determining, the market value of the acquired land. However, if any differing feature or factor in a land covered by comparable sale admits of adjustment in terms of money, depending on whether it is plus factor or minus factor, the market value of the acquired land is determined either by increasing its price or decreasing its price vis-a-vis the price fetched for land under comparable sale. What applies to comparable sale, equally applies to comparable award, if such award is relied upon as that furnishing a price basis for determination of the market value of the land, cannot be disputed. Thus, the best evidence for determining the market value of the acquired land could be an authentic transaction of sale relating to the very acquired land or a portion thereof or any other land which could be favourably compared with the acquired land. The same would be the position when the available evidence relates to land covered by a previous award.
8. If ‘Comparable Sales Method of Valuation of Land’ is adopted for determining the market value of an acquired plot of land, it generally holds good for determination of the market value of several acquired plots of land if acquisition of all such plots of land is made pursuant to the same preliminary notification. But, if any of the factors, such as, location, shape, size, potentiality or tenure of one plot of acquired land widely differs from the other plot (s) of acquired land (s), then the market value of each plot of land acquired has to be determined independently of the other (s) even if all of them had been acquired pursuant to the same preliminary notification. The reason is not far to seek since, the differential factors relating to different acquired plots greatly affect their value. Hence, if any salient factor of different acquired plots of land, which greatly affects their value is ignored or is not taken into consideration by the Court while determining the market value of acquired lands, it will have failed to apply the correct principle of valuation adoptable in valuation of different types of acquired lands.
15. I will refer to sale instances produced and proved by the claimants. To prove the sale instance at Exhs. 23, 26, 27 the claimants have examined either vendee or vendor of the sale deed. Balwantrao Sangram Dawangawe has been examined as Witness No. 3 for the claimants. He has proved Exh. 23 sale deed dated 7th Feb., 1978. This sale deed is in respect of Land Survey No. 95/B situated at Shirur Tajband, total admeasuring 12A 7G. Out of that an area of 4 acre 2 gunthas equivalent to 1H 3.20R are sold for Rs. 25,000. The approximate value per acre comes to about Rs. 6000 and odd. The sale deed recites that the land is sold with share in the well which is 8 annas 4 paise with one tamarind tree. It is stated that a sum of Rs. 20,000 were received prior to executing sale deed. This amount is received by vendor for household expenses or, for repayment of loan, for marriage expenses of his daughter and also for purchasing new land. The sale deed recites that the possession has been handed over on the date of execution of the sale deed. So far as genuineness of the sale deed is concerned, there is no doubt, it appears from reading of the contents of the sale deed that the sale deed appears to be genuine and it is effected for the reasons stated in the sale deed. This witness has been cross-examined but nothing has come out from his evidence. The only answer that is relevant for this purpose is that, this witness has admitted that the land revenue of this land is 75 paise per acre.
16. The next sale deed is Exh. 25 Mahadu Walse is the vendor who was the owner and possessor of the land Gut No. 86 admeasuring 30A 5 gunthas. Out of this land an area of 3A 11G equivalent to 1H 32R has been sold for Rs. 17,000. The average price of this land comes to round about Rs. 5,000 per acre. From the recital of the sale deed that he has received Rs. 6400 at the time of agreement of sale and balance of amount was to be received before the Sub- Registrar at the time of registration of the sale deed. There is endorsement by the Sub-Registrar below the sale deed that the vendor has received Rs. 10,600 on the date of execution of sale deed i. e. 7th July, 1977. 1 have gone through the evidence of the vendor and the contents of the sale deed. He has stated that the revenue assessment of the land which was sold by him is 25 paise per acre. In the cross-examination a suggestion was given to this witness that he has quoted exaggerated amount in the sale deed. This land is also from Shirur Tajband. This witness has stated that the land under acquisition and the land conveyed by this sale deed is near the acquired land and there are two fields between the acquired land and the sale deeds. This sale deed also appears to be genuine.
17. The next sale deed is sale deed at Exh. 27 vendee Narsingh Sadashiv (Witness No. 5) for the claimant who has purchased 2A 10G of the land situated at Hanumantwadi bearing Survey No. 58, total admeasuring 7A 36 G for a consideration of Rs. 15,000. The recital in the sale deed shows that the price of the land stated in the sale deed is Rs. 15000. The land in the revenue record stands in the name of Ramrao & Baburao. Baburao has share in this land. This land is sold with the mango tree and this land is being sold for education expanses of Ramrao & Baburao, the co-owners. This sale deed further recites that as he has to purchase another land out of these sale proceeds and also to repay the loan and to meet the family needs. It is stated that the vendor Nos. 2 and 3 namely Ramrao and Baburao agreed to receive Rs. 10,000 on 30th March, 1978. There is an endorsement that Rs. 5000 were accepted before the Sub-Registrar, In the cross-examination this witness has stated that the lands covered by the sale deed is from Hanuman-Jawalga. This witness stated that the distance between the land at Hanuman-Jawalga and the land under acquisition is about one mile. He has stated in the cross-examination that the agreement of sale took place about 7 years back. The suggestion which was put to him that price shown at Rs. 15000 is nominal one and the sale deed was executed for Rs. 5000, which this witness has received before the Sub-Registrar. These are the three sale instances by the claimants, in order to establish the market value of the land. On the basis of the evidence on record, now I will consider whether these lands covered by the sale deeds can be compared with the land under acquisition.
28th March, 2002.
18. As the claimants have based their claim for enhancement of compensation on the “Comparable Sale Method”: In order to find out whether the sale instances produced by the claimants can be compared with the land under acquisition, the Court has to consider the following features, namely :
(1) The sale must be genuine transaction;
(2) The sale deed must have been executed at the time proximate to the date of issuance of notification Under Section 4;
(3) The land covered by the sale must be in vicinity of the acquired land;
(4) The land covered by the sale must be similar to the acquired land;
(5) That the size of the plot of the land covered by the sale deed be comparable with the land acquired.
(6) The advantage and disadvantage of both the lands must be similar or near to similarity if there is dissimilarity in regard to locality, the shop, site, nature of land between the land covered by the sale deed and the acquired land.
If all these ingredients exist then only the sale deeds can be held to be comparable one. So far as first two aspects are concerned, I have noticed that the sale deeds are genuine and they are just prior to the issuance of notification Under Section 4. These two aspects by themselves will not be sufficient to compare the land covered under the sale deed and the land under acquisition. It is for the claimants to prove and demonstrate that the lands under acquisition and the sale deeds are similar and can be compared. The burden of the claimants to establish all these aspects. The claimants, no doubt, have proved the sale instances which I have considered and also I find that the learned Judge has accepted the said as genuine one. It is not possible for me to take a different view of this aspect. Further,- the important aspect which I have to see from the evidence of the claimants, whether there is any evidence to establish feature Nos. (3) to (5) {supra}. In this respect, it is to be noted that there is general statement by the witnesses that the lands covered by the sale deeds are similar in quality of the acquired land. Witness-Narsing Zatale (Exh. 26) has stated that the distance between his land and acquired land is of 5 to 6 fields. This indeed is a general statement. The claimants have not taken any care to establish the distance between the acquired land and the sale instances as it has a bearing on the market value. It is to be noted that the land acquired and covered by the sale deed must be in vicinity or near to the land, but a vague statement is made by this witness that the land is about 5 to 6 fields away from the acquired land. This statement of the witness is not useful to prove that the land acquired and covered by sale deed is in vicinity. Many factors control the price of land, such as, location, irrigation facility, fertility, shape, size, potentiality a tenure of one land wildly differs from every land. Generalisation of market value relying on one or two sale deed is not safe method to determine the market value. Then the market value of every land acquired has to be determined independently of the others, even if all of them had been acquired pursuant to some preliminary notification, as all the features (supra) has to be proved. As I find from the entire evidence the claimants have not taken any effort to prove all the features. It is undisputed that the lands which are acquired are from village Talegaon and the sale instances are from Shirur Tajband. In the evidence, the claimants have made vague statement regarding the distance which, in my opinion, is not possible for me to accept that the land are within the vicinity or adjacent to the land under acquisition. In my opinion, the learned Trial Judge has committed an error in holding that these sale deeds are comparable. I hold that the claimants have failed to prove that the land acquired and the lands covered by the sale deed are in vicinity and they have not also proved the similarity in respect of features (3) to (6) (supra). In Reference under Section 18 of the Act, the claimants have to prove and demonstrate that the compensation offered by the L.A.O. is inadequate and same does not reflect the true market value of the land on the date of the notification Under Section 4. This could only be done by the claimants by adducing evidence to the effect that on the relevant date the market value of the land in question was such at which vendor and the vendee were willing to sale or purchase the lands. Ex. 23 – though it is a genuine sale deed it is not by a willing seller. Recital in the sale deed show that land is being sold for repayment of the loan and for marriage expenses of the daughter and also for purchasing another property. Considering this statement in the sale deed which has been proved and accepted by the learned Judge, it will be not proper to accept the said sale deed as comparable one because of the recitals in the sale deed shows that as the vendor has to repay the loan, there was some compulsion and need to sell the land; the land which is sold under compulsion cannot be said to be sale by a willing seller in the free market and, as such, the sale deed Exh. 23 will not be a guiding feature to determine the market value of the acquired land.
19. Coming to the next sale deed Exh. 25 dated 7th July, 1977, this land is from Shirur Tajband. But the claimants have not adduced any evidence to show the similarity of this land covered by the sale deed with the acquired land. I had seen from the evidence of the claimants lacks in this respect. Though the sale deeds Exh. 25 is a genuine sale deed but, because of the fact that the lands are situated in different villages and when there is no evidence on record to establish the similarity of both the lands, the sale deed cannot be considered as comparable one.
20. Then coming to last sale deed Exh. 27 I need not discuss this sale deed in detail, because from the facts stated in the sale deed it is clear that the agreement of sale was executed some ten years back and the sale deed was executed on 20th May, 1977. The consideration shown is Rs. 15000. The claimants have not produced any evidence to show that the actual consideration has been paid at the time or after agreement of sale is executed which, according to the evidence, that it was agreed between the parties that Ramrao and Bhaurao agreed to receive Rs. 10,000 on 30th March, 1978; but no further evidence is produced that, in fact Rs. 10,000 paid as per agreement. The statement in the sale deed, shows that the agreement of sale was executed some ten years back. A person executing the agreement of sale may not wait for ten years to get the sale deed executed. No explanation coming forth as to why for ten yeas sale deed is not executed. In my opinion, this aspect casts a doubt about the consideration because the consideration shown in the document is Rs. 15,000 but actual payment before the Sub-Registrar is made and that amount is only Rs. 5000. Considering this discrepancy in the sale deed, it will not be safe for me to consider this sale instance as comparable one. Similarly, the land is in village Hanuman Jawalga. There is no evidence produced by the claimants that the lands at Hanuman Jawalga and the land at Talegaon having all similarities. Though the Government Pleader has not cross-examined the said witnesses, but because of the non cross-examination one cannot accept the evidence as it is. The evidence has to be scrutinised. It is accepted that all the three sale instances are produced by the claimants and they have proved it by examining the vendee or vendor. The grievance made by Shri Solshe that there is no effective cross-examination to disprove the three sale instances. The learned Counsel contended that all the three sale instances are proved. Therefore, the sale deed has to be accepted as it is. So far as proof of the document is concerned, the documents are proved but while considering the similarity of the land, this Court has to consider and interpret the said document in its proper perspective to find out whether the sale can be compared with. The Apex Court in Hookiyarsingh v. Spl. Land Acquisition Officer, Moradabad ruled as followed :
6. It is settled law that the burden of proof of market value prevailing as on the date of publication of Section 4(1) notification is always on the claimants. Though this Court has time and again pointed out the apathy and blatant lapse on the part of the Acquiring Officer to adduce evidence and also improper or ineffective or lack of interest on the part of the Counsel for the State to cross-examine the witnesses on material facts, it is the duty of the Court to carefully scrutinise the evidence and determine just and adequate compensation. If the sale deeds are found to be genuineness, the market value mentioned therein must be presumed to be correct. It the genuineness is doubted, it cannot be relied upon. Proper tests and principles laid down by this Court must be applied to determine compensation. Since the L.A.O. as well as the High Court placed reliance on the sale deed which commanded market value of a maximum of Rs. 15,000 and odd, the question is : what would be the just and adequate compensation to be paid in respect of the lands? The Court must not indulge in feats of imagination but, sit in the armchair of a prudent purchaser in open market and to put a question to itself whether as a prudent purchaser it would offer the same price in the open market as is to be determined? This should be the acid test. The District Court was not right in holding that the lands are possessed of future potentiality as public purpose is industrial development. Section 24 clause fifthly prohibits taking into consideration future user to which the land put when acquired. Considered from the fluctuation in the prices placed on record and large area involved in the acquisition, situation of the lands, actual user of the lands as agricultural lands and on the totality of the facts in this case, treating all the lands as agricultural lands, we are of the considered view that the market value of the land per acre would be Rs. 35,000. The claimants are accordingly entitled to this amount. It is no ground for the claimants to contend as they are required to refund the difference of the compensation amount, the amount determined by the High Court or Reference Court should be confirmed. If that contention is given acceptance in no case proper compensation can be fixed by the Appellate Court.
21. Shri Solshe, learned Advocate for the claimants, contended that comparing the lands covered by the sale deed and 7/12 extract of the acquired land which are produced on record which are at Exhs. 14 to 21 can be comparable on the basis of revenue assessment. Endeavour of the learned Counsel to point out this document to compare land acquired with the land covered under the sale deeds on the basis of revenue assessment. He pointed out from the statement in the sale deed that the revenue assessment of the lands is mentioned and the 7/12 extract of the acquired land is also part of record and the State has not challenged or doubted the entries. Therefore, the learned Counsel stated that the sale deeds are comparable on the basis of revenue assessment. The learned Counsel stated that revenue assessment is made on the basis of quality of the lands. This contention appears to be plausible but hard to digest and difficult to accept in the present circumstances more so, when it is not brought on record as to when the revenue assessment was made; whether there was any revision at any time and whether the revenue assessment has any relation to the quality of the land or the crops that are grown. The claimants’ evidence falls short in this respect. Therefore, it cannot be considered that the land sold and the acquired lands can be compared on the basis of revenue assessment. It is very difficult to accept the contention of the learned Counsel and in my opinion, the claimants have failed to demonstrate that the market value determined by the L.A.O. does not reflect the true and correct market value of the land. As I discarded all the three sale instances for above reasons and also applying the ratio of the Apex Court judgment in Printer’s House Put. Ltd., (supra) and Shaji Kuriakose and Anr. v. Indian Oil Corporation Limited . There is no scope for enhancement of compensation and the finding by the learned Judge cannot be accepted.
22. I will now consider another limb of the argument of Shri Solshe, that this Court should award compensation on the basis of capitalisation. I will consider this contention but I am of the firm view that when the evidence is brought by the claimants to show that there were some sale instances it will not be appropriate to harp upon to decide the question of market value on the basis of capitalisation. No doubt, capitalisation is also one of the methods to ascertain the market value of the land. This depends on the evidence that is being produced on the record regarding the quality of the land, crops that are grown, the nature of soil, availability of irrigation facilities the expenditure and the net income from the land after deducting all necessary expenses. But unfortunately, in the present cases, the claimants have not led any evidence. They have merely stated that yearly income from the land is between Rs. 2000 and Rs. 3000. The learned Counsel contended that the evidence of the claimants regarding yield should be accepted as there is no cross-examination by the Government Pleader on this aspect.
As I already referred to the judgment of the Apex Court in the case of Hookiyarsingh (supra) I need not repeat the same thing to repeal the contention of the learned Counsel.
23. In the land acquisition matters, while determining the market value what is relevant is; the date of notification and the claimant has to lead evidence that on the date of notification, particular income being derived from the acquired land. In order to determine the market value of the acquired land on the basis of capitalisation, the claimants have to establish (i) income (ii) expenditure (iii) net profit and then by applying multiplier by number of years, the value can be arrived at. In this aspect, the law has. been declared by the Apex Court in Spl. Land Acquisition Officer Davangere v. Verbhadarappa (supra). The relevant portion of the said judgment laying down the law, I find it from paras 7 and 8 and in view of the authoritative pronouncement, I need not ponder on this issue. Suffice to say that claimants have not established their claim for determination of market value on capitalisation basis,
24. Shri Solshe, brought to my notice judgment of the Apex Court in the matter of State of Gujarat v. Ram Rana and Ors. . The learned Counsel placed reliance on the statement of law in para Nos. 4 and 5 of the judgment. The facts before the Apex Court in Ram Rana’s case are in short are as follows :
The land to the extent of 68H and 62.5 metres was acquired for Irrigation Scheme. Notification Under Section 4 was issued on 25th August, 1977 and the Land Acquisition Officer by the award dated 27th March, 1978 awarded the compensation at the rate of Rs. 2223.50 per acre for dry lands and Rs. 3335.01 for irrigated land and Rs. 40.47 paise for waste land. On the reference Under Section 18, the Civil Court enhanced the compensation at uniform rate of Rs. 325 per acre irrespective of their classification. On appeal to the High Court, the High Court confirmed the said judgment. The appeal is carried to the Apex Court. The Apex Court found in that case that eight witnesses came to be examined in proof of yield of the acquired land and one of the witnesses was the Sarpanch of village and his evidence was accepted. The Reference Court found that the witnesses exaggerated the yield and the Civil Court has deleted 1/3rd amount from the price. On that basis the Civil Court determined the market value. In case of Ram Rana, there was no evidence by way of sale deeds and the evidence of Sarpanch was acceptable to the Court which, in fact, was accepted by the Reference Court to be that of a reliable person and, on this backdrop the Apex Court determined the market value on the basis of yearly yield by applying 1.0 years multiplier. Shri Solshe learned Counsel contended that 1 should also ‘ adopt the said procedure because at least on record, two witnesses have spoken about the yield from the land. Though this contention by the learned Counsel is acceptable but I have to consider this contention along with the evidence which is produced by the claimants as I found that the evidence of the claimants lacks in all respects and does not inspire confidence. Therefore, on the facts of this case and the one that were before the Apex Court in Ram Rana’s case, the ratio is not applicable in the case at hand. Therefore, the claimants are not entitled to compensation on the capitalisation basis also.
25. Turning to the last contention of the learned A.G.P. regarding non-filing the claim before the Land Acquisition Officer by the claimants; at the opening part of the Judgment. I have referred to statements made in the Claim Petition where they contend that they have lodged oral demand pursuant to Section 9 notice. I have to find out whether there is any such demand made by the claimants before the Land Acquisition Officer. For this purpose, it will be useful to refer to Section 9 of the Land Acquisition Act.
9. (1) The Collector shall then cause public notice to be given at convenient places or on near the land to be taken, stating that the Government intends to take possession of the land that claims to compensation for all interests in such land may be made to him.
(2) Such notice shall state the particulars of the land so needed and shall required all persons interested in the land to appear personally or by agent before the Collector at a time and place therein mentioned (such time not being earlier than fifteen days after the date of publication of the notice) and to state the nature of their respective interest in the land and the amount and particulars of their claims to compensation for such interest, and their objections (if any) to the measurements made under Section 8. The Collector may in any case require such statement to be made in writing and signed by the party on his agent.
(3) The Collector shall also serve notice to the same effect on the occupier (if any) of such land and on all such persons known or believed to be interested therein or to be entitled to act for persons so interested, as reside or have agents authorised to receive service on their behalf within the revenue district in which the land is situate.
(4) In case any person so interested resides elsewhere and has no such agent the notice shall be sent to him by post in a letter addressed to him at his last known residence, address or place of business and (registered under Sections 28 and 29 of the Indian Post Office Act, 1989.).
26. Considering Sub-section (2) of Section 9 the claimants claim has to be made by raising specific demand in relation to the interest in the land, the amount and the particulars of their claim and the objections, if any to measurements etc. There is further provision that the claim may be made in writing and signed by the party or his agent. In the present case, the claimants have claimed that they have orally made the claim. All the claimants have not stepped into the witness box, to prove this aspect. Though the State has not raised any objection on this basis, but as the Apex Court in Hookiyarsingh’s case has held that it is the duty of the Court to find out the requirement of law. In this aspect I have to consider the statements made in the award. In Land Acquisition Reference before the Civil Court award is inadmissible and contents of the award cannot be considered. But in this case, the claimants themselves by an application Exh. 31 sought permission of the Court to produce the award and, accordingly, permission was granted and the award is brought on record and exhibited which is at Exh. 32. Once the award becomes part of the record and it is taken on record at the behest of the claimants, this becomes evidence and the Court has to consider the said award. I find from Exh. 32 that the Land Acquisition Officer while passing an award has clearly observed as under :
A public notice as required under Section 9(1) has been given in case and individual notices as required Under Section 9 Sub-section (3) of the said Act have also been served on all interested persons.
“No claims have been filed in response to the said notice.” This statement in the award has gone unchallenged. The claimants have not cared to lead any evidence in this aspect when the claimants themselves have brought the award on record by making an application to the Court to take the award on record and consider it. Therefore, in my opinion, the statement made in the award in the present case will have to be accepted and, in my opinion, as the claimants have not lodged the claim pursuant to Section 9 notice, the bar imposed by virtue of Section 25 comes into play. As the claimants have not made any claim pursuant to Section 9, they are not entitled for any enhancement from the Court. Even the claimants have not made out a case that for particular reason, they could not make the claim.
Section 25 as stood then, reads thus :
25. Amount of Compensation. –
25(1) When the applicant has made a claim to compensation pursuant to any notice given under Section 9, the amount awarded to him by the Court shall not exceed the amount so claimed or be less than the amount awarded by the Collector under Section 11.
(2) When the applicant has refused to make such claim or has omitted without sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded by the Court shall in no case exceed the amount awarded by the Collector.
(3) When the applicant has omitted for a sufficient reason (to be allowed by the Judge) to make such claim, the amount awarded to him by the Court shall not be less than, and may exceed, the amount awarded by Collector.
Therefore, in view of the statutory bar, in my opinion, the claimants are not entitled for enhanced compensation as they have not lodged the claim as required under Section 9 of the Land Acquisition Act. Shri Solshe learned Counsel, submitted that this point was not raised before the Reference Court nor in the Memorandum of Appeal. It is true that no such point was raised but this Court has to consider whether the claimants are really and legally entitled for enhancement of the compensation and whether they have made out a case for enhancement as per law. Due to negligence of the Government officials, there should be any burden on the State exchequer. The Apex Court in so many words condemned such an action of the Government Officers dealing with the matter. In Hookiyarsingh’s case (supra) where the Apex Court said despite the apathy and blatant lapse on the part of the Acquiring Officer to adduce evidence and also improper or ineffective or lack of interest on the part of the Counsel for the State cross-examine the witnesses on material facts, it is the duty of the Court to carefully scrutinise the evidence and determine just and adequate compensation. As stated above, there is statement in the award that the claimants have not lodged any claim but unfortunately for the claimants have not taken any care to prove the facts otherwise. Therefore, in my view, the learned Judge has erred in allowing the Reference and granting enhanced compensation of Rs. 3,500 per acre. Shri Solshe further contended that this Court may consider the provisions that are introduced by amended Act No. 68/84 by which Section 25 came to be amended and the bar which was put on the right to claim compensation by the claimant has been removed. Therefore, he contended that this Court may confirm the judgment of the Civil Court. But in view of the latest pronouncements of the Apex Court in interpreting Section 25 after amendment in case of Land Acquisition Officer v, M/s. B.V. Reddy and sons, (supra) the Apex Court has held that Section 25 is not a procedural but it is substantive and its application is prospective and, therefore, the claimants are not entitled for any benefit of the amended act and the question has to be considered as the section stood then.
27. In view of my above statement of law by the Apex Court in M/s. B. V. Reddy’s case, and on appreciation of evidence, in my judgment, the learned Judge has not properly considered the evidence and committed error in enhancing compensation. In my judgment, the contentions raised by the A.G.P. required to be accepted and the contention raised by Shri Solshe stand repealed as I am allowing the appeals filed by the State. There is no question of granting the benefits of Amended Act., granting benefits of the amended act even though the reference was pending before the Civil Court when the Bill was introduced in the Parliament, the condition precedent for awarding additional statutory benefit arise only when the Court or the Appellate Court enhanced the compensation. This issue has been settled by the Apex Court in the reported judgment in State of Punjab v. Jagiarsingh 1995 Vol. IV Supp. SCC 626 : 1995(9) J.T. 1 : 1995 (6) Scale 314 : 1995(2) Rent L.R. 674. In view of the law laid down by the Apex Court, the contention of the learned Counsel for the respondents cannot be accepted. The claimants are not entitled for any benefit on the basis of Act No. 68/ 94.
28. All the appeals succeed and allowed. The judgment and order passed by the learned Civil Judge, Senior Division on 20.2.1984 in Land Acquisition/Reference No. 72/81; 75/81; 76/81; 77/81; 214/82; 74/81; 73/81 are quashed and set aside. All references filed by the respective claimants stand rejected. The claimants have to refund the amount that they have received pursuant to the judgment and decree by the Civil Court. The claimants have to refund the amount to the Government with interest at 4% per annum from the date of receipt of amount by them till the repayment. As the State has succeeded in the appeal, the State is entitled for cost of these appeals.