Dismissed

The State of Maharashtra v. Bhaskar Namadeo Wagh and Others

Bombay HC23 Oct 2008FA/1025/1999

Case brief

AI extract

What is this about?

Appeals wherein the State challenged the District Judge's judgment enhancing land acquisition compensation. The High Court, relying on Supreme Court precedents regarding interest for pre-notification possession and validity of recent sale deeds as market indicators, found no reason to interfere with the award and dismissed the appeals.

What did the court decide?

Appeals dismissed; judgment and award of the District Judge upheld; cost as to costs not awarded.

The State of Maharashtra Vs Bhaskar Namadeo Wagh and Others — Land Acquisition | Bombay HC (2008)

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IN THE HIGH OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION

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FIRST APPEAL NO. 1025 OF 1999 with FIRST APPEAL NOS. 1026/99 TO 1032/99, 1034/99, 1035/99, AND 873/99.

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FIRST APPEAL NO. 1025 OF 1999 with CIVIL APPLICATION NO.8958/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik)

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......... Appellant (Orig. Opponent)

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V e r s u s

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Bhaskar Namdeo Wagh, Age 51, Occ. Service.

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Sahebrao Namdeo Wagh, Age 40, Occ. Service.

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Hiraman Namdeo Wagh, Age 38, Occ. Service.

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Smt. Shivabai Namdeo Wagh, Age 70, Occ. Household.

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Mrs. Usha Namdeo Wagh, Age 20, Occ. Household.

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All resident of Mukhed, Tal. Yeola, Dist. Nashik.

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Mrs. Kamalabai Anandrao Ghodekar, Age 50, Occ. Household.

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Mrs. Satyabhamabai Kacharrao Ghogadmal

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Mrs. Shashikala Sahebrao Jadhav Both resident of Mukhed, Tal. Yeola, Dist. Nashik. No. 1 himself and G.P.O.A. Holder Nos. 2 to 8. .......... Respondent. (Org. Claimant.)

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FIRST APPEAL NO. 1026 OF 1999 with CIVIL APPLICATION NO.8959/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent)

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V e r s u s

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Ramdas Bhagwat Lifte, Age 40, Occ. Agriculturist, Resident of Wakad, Tal. Niphad, Dist. Nashik. .......... Respondent. (Org. Claimant.)

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FIRST APPEAL NO. 1027 OF 1999 with CIVIL APPLICATION NO.8960/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent)

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V e r s u s

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Saka Shankar Wagh, Age 65, Occ. Agriculturist, Resident of Mukhed, Tal. Yeola, Dist. Nashik. .......... Respondent. (Org. Claimant.)

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FIRST APPEAL NO. 1028 OF 1999 with CIVIL APPLICATION NO.8961/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent)

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V e r s u s

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Nanda Sada Wagh, Age 55, Occ. Agriculturist, Resident of Wakad (Shirwade), Tal. Niphad, Dist. Nashik. .......... Respondent. (Org. Claimant.)

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FIRST APPEAL NO. 1029 OF 1999 with CIVIL APPLICATION NO.8962/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent)

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V e r s u s

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Ashok Karbhari Kale, Age 28, Occ. Agriculturist

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Navnath Karbhari Kale,

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Age 24, Occ. Agriculturist.

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Both resident of Mukhed, Tal. Yeola, Dist. Nashik. .......... Respondents. (Org. Claimants.)

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FIRST APPEAL NO. 1030 OF 1999 with

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CIVIL APPLICATION NO.8963/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent)

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V e r s u s

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Laxman Firangu Patil, Age 75, Occ. Agriculturist, resident of Wakad (Shirwade), Tal. Niphad, Dist. Nashik, Since deceased his L.Rs.

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Amruta Laxman & 2) Bagwanta Laxman Lipte Patil,

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Koubai Kacharu Shelke. .......... Respondents. (Org. Claimants.)

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FIRST APPEAL NO. 1031 OF 1999 with CIVIL APPLICATION NO.8964/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent)

V e r s u s

Bajirao Bala Patil,

since deceased his LRs.

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Nivrutti Bajirao Gaikwad, 55. 2) Haribhan Bajirao Gaikwad,45 3) Kumdeo Bajirao Gaikwad, 40 4) Dattu Bajirao Gaikwad, 38

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All are agriculturist and Resident of Wakad, Tal. Niphad, District: Nashik. .......... Respondents. (Org. Claimants.) FIRST APPEAL NO. 1032 OF 1999 with CIVIL APPLICATION NO.8965/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent)

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V e r s u s

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Trimbak Pandurang Ahire, Age 55, Agriculturist, Resident of Wakad, (Shirwade), Tal. Niphad, District : Nashik. .......... Respondent. (Org. Claimant.)

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FIRST APPEAL NO. 1034 OF 1999 with CIVIL APPLICATION NO.8967/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent)

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V e r s u s

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Dinkar Damodhar Badwar, Age 40, Occ. Agriculturist, Resident of Wakad, (Shirwade) Tal. Niphad, Dist. Nashik.

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.......... Respondent.

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(Org. Claimant.)

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FIRST APPEAL NO. 1035 OF 1999 with CIVIL APPLICATION NO.8968/1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik)

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......... Appellant (Orig. Opponent)

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V e r s u s

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Bhausaheb Kachru Wagh Age 30, occ. Agriculturist.

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Deobai Kachru Wagh, Age 65, Occ. Household.

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Smt. Rambhabai Kachru Wagh, Occ. Household.

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(matter dismissed as against R.3 as per Order dated 22.8.02)

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Smt. Shindubai Dinkar Kedare, Age 36, Occ. Household.

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Smt. Indubai Kachru Wagh, Age 40, occ. Household.

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(matter dismissed as against R.5 as per Order dated 22.8.02)

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All resident of Mukhed, Tal. Yeola, Dist. Nashik, No. 1 for himself and General

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7 Power of attorney holder of Nos. 2 to 5. ...... Respondents (Orig.Claimants)

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FIRST APPEAL NO. 873 OF 1999

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The State of Maharashtra, (At the instance of Special Land Acquisition Officer, National Highway Project, Nasik) ......... Appellant (Orig. Opponent) V e r s u s Sahebrao Sarjerao More, age 55, occupation agriculturist, resident of Wakad, Tal. Niphad, Dist. Nashik. .......... Respondent. (Org. Claimant.)

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Mr. A. R. Patil, A.G.P. for the appellant/State

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Mr. P. N. Joshi, Advocate for the Claimants/respondent.

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CORAM : SWATANTER KUMAR , C.J., & A.P. DESHPANDE, J. Date of Reserving the Judgment : 20/8/2008 Date pronouncing the Judgment.: 23/10/2008

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J U D G M E N T : (Per A.P. DESHPANDE, J.)

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These appeals arising out of land reference Nos. 365/89, 366/89, 367/89, 370/89, 371/89, 373/89, 374/89, 377/89, 23/95, 26/95 question the correctness of the Judgment and Award passed by the District Judge, Nashik, enhancing the compensation granted to the respondents/claimants in references filed under Section 18 of the Land Acquisition Act. The Land Acquisition Officer, National High Way Nashik (Special Land Acquisition Officer) published a Notification under Section 4 of the Land Acquisition Act on 20.8.1981, followed by declaration under Section 6 on 24.3.1983 and an Award under section 11 on 23.6.1986. Though the Notification under section 4 was issued on 20.8.1981, possession of the land has been taken little prior thereto i.e. on 16.7.1981. The claimants accepted the award under protest and moved reference applications under Section 18 of the Act, respectively. The present appeal relate to the claimants whose lands are covered by the said same notification. The lands of all claimants were acquired for the same project under the same notification and hence, all the references are decided jointly and disposed off by a common Judgment.

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The following particulars would indicate the land reference

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numbers, land gat numbers and the area of land acquired :

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*Sr. No.*	*L.R. No.*	*Land Gat Nl.*	*Area acquired.*
1.	365/89	20	1 H. 99 R.& 0.6 PK.
2.	366/89	62	1 H. 29 R.
3.	367/89	21	0.43 R. & 0.02 PK
4.	370/89	23	0.37 R.
5.	371/89	65	0.62 R.
6.	373/89	63	1.25 R.
7.	374/89	138	0.62 R.
8.	377/89	27	1.48 R. 0.06 PK.
9.	23/95	66	1.25 R.
10.	26/95	19	2.94 R. & 0.05 PK.

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The Special Land Acquisition Officer (SLAO) had made grouping of the lands and decided to award compensation based on the groups which encompasses the land. For Group I, the market value determined by the SLAO was Rs.4500/- P.H.; for Group II the market value was Rs.5800/P.H. And for Group III the market value was Rs.9000/- P.H. As stated hreinabove, the claimants not being satisfied with the quantum of compensation awarded to them, filed reference applications under Section 18 of the Act.

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The claimants examined as many as 5 witnesses and proved

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the relevant documents with a view to establish the potential of the land and other features which would entitle them to claim higher amount of compensation. The District Judge grouped the land in 3 categories, i.e. Bagayat, Jirayat and Pot Kharab. The compensation for Bhagayat land has been granted by the Reference Court at the rate of Rs.48000/- P.H.; whereas Jirayat Land the same has been granted at the rate of Rs.32000/- P.H. and for Pot Kharab the same has been granted at the rate of Rs.2000/- P.H.

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Before we proceed to deal with the evidence led by the claimants before the District Court, it wold be relevant to note that the appellant/State chose not to file written statement before the District Court and has also not led any evidence whatsoever. As the lands which are subject-matter of these appeals were adjoining lands covered by the same Notification issued for the same project, the lands are by and large having the same potential depending upon the criteria of Bagayat, Jirayat and Pot Kharab. Common evidence was recorded by the District Judge as the land references were clubbed and evidence has been recorded in Land Reference No.365/1989. The claimants had placed on record two sale deeds. One sale deed is dated 28.5.1982 which is

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proved and marked Exhibit 26. The sale instance is in respect of sale of a land admeasuring 1 hectare from the same Village Wakad. The said land was sold at the rate of Rs.40,000/- per hectare. C.W.2 Dattatraya Somvanshi is a witness to the sale deed at Exhibit-26, wherein one hectare of land fetched Rs.40,000/-. He categorically deposed that the land sold under sale deed at Exh.26 was Jirayat land. The other sale instance which has been brought on record by the claimants is dated 4.12.1981, whereby land admeasuring 21 R. was sold for Rs.10,000/-. This sale instance is proved by examining the Vendor Dadamiya Inamdar C.W.4 and the sale deed has been exhibited as Exhibit 32. The rate per hectare in respect of the sale deed dated 4.12.1981 comes to Rs. 47,619/-. The sale instance at Exhibit 32 is from adjoining Village i.e. Village Mukhed. The said witness CW.4 Dadamiya Inamdar in his deposition has stated that the distance between the land acquired and the land under sale instance Exhibit 32 is very less and the two lands are separated only by six survey numbers. This land covered by Exhibit 32 is a Bagayat land as the said land had irrigation facilities from the well as well as canal. The District Judge has opted to rely on the sale deed dated 4.12.1981 for the reason that the said sale instance is nearest in point of time with Section 4 Notification which was issued on 20.8.1981.

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The District Judge accepted the sale instance at Exhibit 32 as a comparable sale instance, having regard to the potential and location of the land and thus fixed for the Bagayat land the market value at the rate of Rs.48,000/- P.H.

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For Jirayat land, he reduced it to Rs.32,000/- P.H. i.e. by deducting about 1/3^rd of the value. It will not be out of place to mention at this juncture that the sale instance at Exhibit 26 was of Jirayat land whereunder one hectare of land was sold at the rate of Rs.40,000/-. The said land is from the Village Mukhed. That is the same Village wherein the claimants' lands are situate. Had the District Judge relied on the sale instance at Exhibit 26, the market value of the Bagayat land would have been fixed at Rs.60,000/- per hectare. However, as the District Judge found the sale instance at Exhibit 32 to be proximate in point of time to the date of notification, he has relied on the same. The witness examined by the claimants have deposed in support of the claimants, categorically asserting that the market value of the land in question at the time of acquisition was more than Rs.50,000/- per hectare. The witnesses have also deposed about the potential of the lands and about the advantages attached thereto on account of passing of canal from nearby distance.

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The learned Counsel appearing for the appellant State has in the first place contended that the Judgment and Award passed by the Reference Court grants interest to the claimants from the date prior to issuance of Notification under Section 4 of the Act and the same is not permissible in law. Before we advert to the said contention, it would be relevant to notice that the possession of the land was taken on 16.7.1981; whereas the Notification under Section 4 was issued on 20.8.1981. Thus, the possession has been taken hardly a month before the issuance of Section 4 Notification. As the payment of interest for a period of about one month is objected to, it is obvious that the money impact would be minimal. The learned Counsel for the appellant has rightly relied upon a Judgment of the Supreme Court in R.L. Jain (D) by Lrs. vs. DDA and others, reported in 2004(4) SCC 79. In the said case, the Supreme Court has held that the claimant would not be entitled to the additional sum from the date of taking of possession till the date of publication of Section 4 (1) Notification. However, in para 18 of the Judgment, the Supreme Court has observed thus :

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“ 18. In a case where the landowner is dispossessed prior to the issuance of preliminary notification under Section 4(1) of the Act the

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Government merely takes possession of the land but the title thereof continues to vest with the landowner. It is fully open for the landowner to recover the possession of his land by taking appropriate legal proceedings. He is therefore, only entitled to get rent or damages for use and occupation for the period the Government retains possession of the property. Where possession is taken prior to the issuance of the preliminary notification, in our opinion, it will be just and equitable that the Collector may also determine the rent or damages for use of the property to which the landowner is entitled while determining the compensation amount payable to the landowner for the acquisition of the property. The provisions of Section 48 of the Act lend support to such a course of action. For delayed payment of such amount appropriate interest at the prevailing bank rate may be awarded.”

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Thus, it is clear that where the possession is taken prior to the issuance of Section 4 Notification, it has been held to be just and equitable that the Collector should determine and pay the rent or damages for use of the property to the land owner. In the present case, the Collector has not paid any rent or damages for a period of about one month on account of

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taking of possession before issuance of Section 4 Notification. As stated hereinabove, that period involved in the present case is of about one month and hence, it has hardly any impact while determining the market value. We do not propose to interfere with the Judgment and Award passed by the District Judge in relation to the payment of sum by way of interest for a period of about one month prior to the issuance of Notification under Section 4(1), as in our opinion, the said amount would represent the rent and/or damages, which the claimants would be entitled to.

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It is next submitted by the learned Counsel for the appellant that the sale instances relied upon by the claimants are subsequent to the issuance of Section 4 Notification and hence ought not to have been considered. This issue has been addressed by the Supreme Court in the case of Karan Singh and others vs. Union of India, reported in 1997(8) SCC 186. In para 5 of the Judgment, the Supreme Court has observed thus :

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“... When a land is compulsorily acquired, what is basically required to be done for awarding compensation is to arrive at the market value of the land on the date of the notification under Section 4

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of the Act. The market value of a piece of land for determining compensation under Section 23 of the Act would be the price at which the vendor and the vendee (buyer and seller) are willing to sell or purchase the land. The consideration in terms of price received for land under banafide transaction on the date of notification issued under Section 4 of the Act or a few days before or after the issue of notification under Section 4 of the Act generally shows the market value of the acquired land and the market value of the acquired land has to be assessed in terms of those transactions. The sale of land on or about the issue of notification under Section 4 of the Act is stated to be the best piece of evidence for determining the market value of the acquired land.”

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Thus, a transaction immediately preceding or succeeding would afford a good guidance to determine the market value of the acquired land. Perusal of the evidence also shows that the appellant did not object to the bonafides of the said transactions. Thus the sale instances will have to be presumed to be benafide, more so in the absence of filing of the written statement and/or examination of any witness by the State.

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The Reference Court for determining as to in which category the given land falls such as Bagayat or Jirayat, it has relied upon the nature of the crops, having regard to the crop entries in the revenue record. The agricultural lands wherein Jawar, Bajari etc. are shown to have been cultivated, such lands have been treated as Jirayat lands; whereas lands wherein sugarcane, onion, groundnuts etc., are cultivated by irrigation, such lands have been treated as Bagayat lands. We do not find anything wrong with the classification of lands into Bagayat and Jirayat.

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Taking overall view of the matter, we do not find any reason to interfere with the Judgment and Award passed by the Reference Court. The learned Counsel for the appellant has not brought to our notice any perversity in the Judgment and Award impugned. A possible view of the matter has been taken by the Court below and thus, we are not inclined to interfere with the Award under challenge.

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Though we have heard Appeal No. 1033/99 arising out of Land Reference No.19/95 along with present appeals, we have separated the same. The said appeal be listed for hearing afresh.

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