Judgment : 1. Heard Mr. Gorde Patil, learned counsel for the Appellant and Mr. S.P. Dound, learned A.G.P. for the Respondents. 2. The present First Appeals preferred by the Appellants/ original claimants against the Judgment and award dated 14th December, 1992 passed by Civil Judge, (Senior Division), Biloli in Land Acquisition Reference No.49 of 1991. In order to appreciate the challenge in this Appeal, it will be necessary to advert to few relevant facts in the matter. 3. The Special Land Acquisition Officer (for short "S.L.A.O.") issued notification under Section 4 of the Land Acquisition Act dated 22th June, 1983 for acquiring land of the Appellants for approach road to Yesgi Bridge. The Respondent acquired land admeasuring 28 Rs from Gut No.6, 1 Hector 25 Rs from Gut No.78, 34 Rs from Gut No.134 and 54 Rs from Gut No.138. Thereafter S.L.A.O. issued Notification under Section 6 of the Land Acquisition Act dated 30th January, 1986. After following due process of law, S.L.A.O. declared award dated 25th August, 1988 and awarded compensation in respect of acquired land as follows: .(a) For Group No.III @ Rs.20,000/- per Hector, .(b) For Group No.IV @ Rs.21,000/- per Hector, .(c) For Group No.V @ Rs.22,000/- per Hector. 4. Beforepassing the award the S.L.A.O. took possession of the acquired land on 9th December, 1985. Being aggrieved by the award passed by the S.L.A.O. on 25th August, 1988, the Appellant/ original claimant preferred Reference under Section 18 of the Land Acquisition Act and claimed compensation in respect of acquired land @ Rs.30,000/-per acre. The Appellant also claimed a sum of Rs.50,000/- towards Mango and Guava trees and a sum of Rs.1,75,500/- towards well, bore well and pump house. The Reference Court by Judgment and award dated 14th December, 1992 held that the claimants are entitled compensation in respect of acquired land @ Rs.25,000/- per Hector from Gut No.134 & 138 and Rs.18,750/-per Hector for a land from Gut No.78 & Gut No.6. The Reference Court also awarded a sum of Rs.75,000/-towards Mango trees. Being aggrieved by the said Judgment and award passed by the Reference Court dated 14th December, 1992, the Appellant/ original claimant preferred present First Appeal for enhancement of compensation in respect of acquired land as well as fruit bearing trees. 5. The Reference Court also awarded a sum of Rs.75,000/-towards Mango trees. Being aggrieved by the said Judgment and award passed by the Reference Court dated 14th December, 1992, the Appellant/ original claimant preferred present First Appeal for enhancement of compensation in respect of acquired land as well as fruit bearing trees. 5. Mr.Gorde Patil, learned counsel appearing on behalf of the Appellant submitted that the Reference Court erred in coming to the conclusion that the claimants are entitled compensation in respect of acquired land at the rate of Rs.25,000/- and Rs.18,750/-per Hector only. Learned counsel for Appellant further submitted that the Reference Court ought to have held that claimants are entitled to compensation in respect of acquired land at the rate of Rs.30,000/- per acre i.e. Rs.75,000/- per Hector. Learned counsel for the Appellant further submitted that the Reference Court should have awarded additional compensation in respect of fruit bearing trees as claimed by the claimants in their Reference Application under Section 18 of the Land Acquisition Act. Learned counsel for Appellant further submitted that the Reference Court did not take cognizance of the fact that the acquired portion of all four Gut Nos. 6, 78, 134 and 138 was having all time working water well facilities with bore but due to acquisition remaining portion of land became dry land. On the basis of these submissions, learned counsel for the Appellant submitted that the Reference Court ought to have held that the claimants are entitled to enhanced compensation as claimed by them in their Reference Application under Section 18 of the Land Acquisition Act. Mr.Gorde Patil, learned counsel for the Appellant pointed out that for the same project Respondents acquired another lands from same village by same Notification under Section 4 of the Land Acquisition Act. He further pointed out that in respect of those lands the S.L.A.O. passed common award dated 30th November, 1981 in respect of present claimants as well as lands involved in those acquisition. He pointed out that being aggrieved by the award passed by the S.L.A.O., those claimants preferred Reference under Section 18 of the Land Acquisition Act and same came to be registered as Land Acquisition Reference Nos. 39 of 1990, 40 of 1990 and 41 of 1990. He pointed out that being aggrieved by the award passed by the S.L.A.O., those claimants preferred Reference under Section 18 of the Land Acquisition Act and same came to be registered as Land Acquisition Reference Nos. 39 of 1990, 40 of 1990 and 41 of 1990. Those L.A.R. came to be decided by Civil Judge, Senior Division, Biloli by Judgment and award dated 28th June, 1991 and awarded compensation in respect of acquired land at the rate of Rs.25,000/- and Rs.18,750/- per acre. The certified copy of the said Judgment and award dated 28th June, 1991 passed by Civil Judge, Senior Division, Biloli in L.A.R. Nos. 39, 40 and 41 of 1990 was produced before the Reference Court and marked as Exhibit 54. On going through the said Judgment, it is amply clear that the Reference Court erred in observing at the time of considering the certified copy of the Judgment at Exhibit 54 that what is stated therein is with reference to Hector and not Acre. Hence the submission of the learned counsel for the Appellant needs to be accepted and given effect to. 6. Mr. Gorde Patil, learned counsel for the Appellant further submitted that the Reference Court erred in coming to the conclusion that claimants failed to produce cogent evidence for claiming enhanced compensation in respect of lands and bore wells in the suit land. 7. Mr. Dound, learned A.G.P. appearing on behalf of the Respondents submitted that the claimants are not entitled to any enhancement in respect of the acquired land. Learned A.G.P. submitted that the Reference Court has considered the sale deed at Exhibits 52 and 53 as well as Judgment and award passed in L.A.R. Nos. 39, 40 and 41 of 1990 for coming to the conclusion that the claimants are entitled to compensation in respect of acquired land at the rate of Rs.25,000/- and Rs.18,750/-per Hector. He further pointed out that Reference Court considered the facts that claimants have failed to produce cogent evidence to show that they are entitled to enhanced compensation in respect of fruit bearing trees, wells and tube wells. On the basis of these submissions, learned A.G.P. Mr. Dound appearing for Respondents submitted that the present Appeal to be dismissed with costs. 8. On the basis of these submissions, learned A.G.P. Mr. Dound appearing for Respondents submitted that the present Appeal to be dismissed with costs. 8. Before considering the evidence on record and sale deeds produced by Appellant/ original claimant, we have to keep in mind that at the time of fixing market value of the acquired land, we have to take into account the Apex Court Judgment in the matter of Chimanlal Hargovinddas vs. Special Land Acquisition Officer, (AIR 1988, Supreme Court, 1652). The Apex Court in this matter held that the market value for compensation in respect of acquired land is to be determined as on crucial date of publication of Notification under Section 4 of the Land Acquisition Act and also to consider the relevant facts prevailing on the date of issuing Notification under Section 4 of the Land Acquisition Act. Para 3 and 4 of the said Judgment read as under:- "3 Before tackling the problem of valuation of the land under acquisition it is necessary to make some general observations. The compulsion to do so has arisen as the trial Court has virtually treated the award rendered by the Land Acquisition Officer as a Judgment under Appeal and has evinced unawareness of the methodology for valuation to some extent. The true position therefore requires to be capsulized. "4 The following factors must be etched on the mental screen: .(1) A reference under Section 18 of the Land Acquisition Act is not an appeal against the Award and the Court cannot take into account the material relied upon by the Land Acquisition Officer in his Award unless the same material is produced and proved before the Court. .(2) So also the award of the Land Acquisition Officer is not to be treated as a Judgment of the trial court open or exposed to challenge before the Court hearing the Reference. It is merely an offer made by the Land Acquisition Officer and the material utilized by him for making his valuation cannot be utilized by the Court unless produced and proved before it. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasoning, or correct its errors or affirm, modify or reverse the conclusions reached by the Land Acquisition Officer, as if it were an appellate Court. It is not the function of the court to sit in appeal against the award, approve or disapprove its reasoning, or correct its errors or affirm, modify or reverse the conclusions reached by the Land Acquisition Officer, as if it were an appellate Court. .(3) The court has to be treat the Reference as an original proceeding before it and determine the market value afresh on the basis of the material produced before it. .(4) Theclaimant is in the position of a plaintiff who has to show that the price offered for his land in the award is inadequate on the basis of the materials produced in the Court. Of course the materials placed and proved by the other side can also be taken into account for this purpose. .(5) Themarket value of the land under acquisition has to be determined as on the crucial date of publication of the notification under Section 4 of the Land Acquisition Act (date of notifications under Ss. 6 and 9 are irrelevant). .(6) The determination has to be made standing on the date line of valuation (date of publication of notification under S.4) as if the valuer is a hypothetical purchaser willing to purchase land from the open market and is prepared to pay a reasonable price as on that day. It has also to be assumed that the vendor is willing to sale the land at a reasonable price. .(7) In doing so by the instances method, the Court has to correlate the market value reflected in the most comparable instances which provides the index of the market value. .(8) Only genuine instances have to be taken into account (some times instances are rigged in anticipation of acquisition of land). .(9) Even post notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay higher price on account of the resultant improvement in development prospects. .(9) Even post notification instances can be taken into account (1) if they are very proximate, (2) genuine and (3) the acquisition itself has not motivated the purchaser to pay higher price on account of the resultant improvement in development prospects. .(10) The most comparable instances out of genuine instances have to be identified on the following considerations: .(i) Proximity from time angle .(ii) proximity from situation angle .(11) Having identified the instances which provides the index of market value the price reflected therein may be taken as the norm and the market value of the land under acquisition may be deduced by making suitable adjustments for the plus and minus factors vis-à-vis land under acquisition by placing the two in juxtaposition. .(12) A balance sheet of plus and minus factors may be drawn for this purpose and the relevant factor may be evaluated in terms of price variation as a prudent purchaser would do. .(13) The market value of the land under acquisition has thereafter to be deduced by loading the price reflected in the instance taken as norm for plus factors and unloading it for minus factors. .(14) The exercise indicated in clause (11) to (13) has to be undertaken in a common sense manner as a prudent man of the world of business would do. We may illustrate some such illustrative (not exhaustive) factors:- Plus Factors. 1. Smallness of size 2. Proximity to a road 3. Frontage on a road 4. Nearness to developed area 5. Regular shape 6. Level vis-a-vis land under acquisition 7. Special value for an owner of an adjoining property to whom it may have some very special advantage. Minus factors. 1. Largeness of area 2. Situation in the interior at a distance from the road. 3. Narrow strip of land with very small frontage compared to depth 4. Lower level requiring the depressed portion to be filled up 5. Remoteness from developed locality 6. Some special disadvantageous factor which would deter a purchaser .(15) The evaluation of these factors of course depends on the facts of each case. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land say 10000 eq. yds. There cannot be any hard and fast or rigid rule. Common sense is the best and most reliable guide. For instance, take the factor regarding the size. A building plot of land say 500 to 1000 sq. yds. cannot be compared with a large tract or block of land say 10000 eq. yds. or more. Firstly while a smaller plot is within the reach of many, a large block of land will have to be developed by preparing a lay out, carving out roads, leaving open space, plotting out smaller plots, waiting for purchasers (meanwhile the invested money will be blocked up) and the hazards of enterpreneur. The factor can be discounted by making a deduction by way of an allowance at an appropriate rate ranging approx. between 20% to 50% to account for land required to be set apart for carving lands and plotting out small plots. The discounting will to some extent will also depend on whether it is a rural area or urban area, whether building activities is picking up, and whether waiting period during which the capital of the enterpreneur would be locked up, will be longer or shorter and the attendant hazards. .(16) Every case must be dealt with on its own fact pattern bearing in mind as these factors as a prudent purchaser of land in which position the Judge must place himself. .(17) These are general guide-lines to be applied with understanding informed with common sense." .9. In the above mentioned matter the claimants produced two sale deeds at Exhibit 52 and 53. Exhibit 52 is a sale deed dated 1st April, 1981 in which the land admeasuring 79 Rs from Survey No.68/3 at Yesgi, Taluka-Biloli, District-Nanded was sold for Rs.14,000/-. The rate comes to Rs.17,721/- per Hector. At Exhibit 53 sale deed dated 2nd May, 1981 produced by the claimants. In this sale deed the land admeasuring 43 Rs from Survey No.27 Hissa No.4 situated at village Yesgi was sold for Rs.10,000/-. The rate comes to Rs.23,255/-per Hector. When these sale deeds are considered for fixing market value of acquired land, we have to consider 10% increase per year in .the market value. For this I can rely on the Judgment of Division Bench of this Court in the matter of Goa Housing Board and another vs. Attorney of Communidade of Mapusa, reported in 2008 (1) Bom. C.R. Page 356. .10. For this I can rely on the Judgment of Division Bench of this Court in the matter of Goa Housing Board and another vs. Attorney of Communidade of Mapusa, reported in 2008 (1) Bom. C.R. Page 356. .10. But in the peculiar facts and circumstances of the present case, instead of considering the sale deeds and other evidence produced by the claimants, it is better to rely on the Judgment and award dated 28th June, 1991 passed by Civil Judge, Senior Division, Biloli in L.A.R. Nos. 39 of 1990, 40 of 1990 and 41 of 1990. In the said proceeding, the S.L.A.O. issued Notification under Section 4 of Land Acquisition Act dated 12th February, 1981 and passed award on 30th November, 1981. Lands were acquired for the same project as involved in present case. The common Notification under Section 4 of the Land Acquisition Act was issued by the S.L.A.O. and also passed common award for fixing market value in respect of the acquired lands. Considering these facts, this is a best piece of evidence to rely in the present matter for fixing the market value of the acquired land. The Apex Court in the matter of Mahadev vs. Asstt. Commissioner /Land Acquisition Officer, (2002 (9) Supreme Court Cases Page 487). held that if the Government has accepted the award in regard to the similar lands all of which were sought to be acquired under the same notification, in that case Acquiring Body should accept the same position in other matters. For this purpose Paras 9 and 10 of the Judgment are relevant, which read as under: ."9. Having heard the counsel for the parties and perused the records, we do not think the High Court was justified in interfering with the award of the Reference Court. The High Court ought to have seen that the acquiring authority viz. the Government has accepted the award in regard to similar lands, all of which were sought to be acquired under the same notification. The High court has not come to the conclusion that the lands of the appellant are in any way inferior to the lands of those owners in whose favour the Reference Court award has become final. the Government has accepted the award in regard to similar lands, all of which were sought to be acquired under the same notification. The High court has not come to the conclusion that the lands of the appellant are in any way inferior to the lands of those owners in whose favour the Reference Court award has become final. In such a situation, we find it difficult to agree with the view taken by the High Court mainly because of the fact that the acquiring authority itself has accepted the award of the Reference Court. The appeal before the High Court was not based on any question of law applicable to the peculiar facts of the appeal before it. It was also an appeal on facts on the basis of which the learned District Judge confirmed the award. If the very same evidence was acceptable to the acquiring authority in regard to six other owners, we fail to understand why it should not be acceptable to the acquiring authority in regard to the appeal before us. At the cost of repetition, it may be stated that it is not the case of the acquiring authority that the land of the appellant, is in any way, inferior to the other lands acquired under the same notification. .11. In similar way our High Court in the matter of Bayaji Tatya Kaluge vs. State of Maharashtra, reported in (2007 (2) All M.R. Page 316) has taken a view that if the lands situated in same village, acquired for same purpose under same Notification, in that case claimants are entitled to compensation at the same rate on ground of parity. Head Note of the said Authority reads as under: .Land Acquisition Act (1894), Ss.4(1), 18- Acquisition of land- Claim of compensation - Parity -Lands situated in same village, acquired for same purpose under same notification - Claimants are entitled to compensation at the same rate on ground of parity. 2003 AIR SCW 5188 - Ref. to." 12. It is pertinent to note that I made query with the Mr. Dound, learned A.G.P. appearing on behalf of the Respondent State to find out whether the State has preferred any Appeal against the Judgment and award dated 28th June, 1991 in L.A.R. Nos. 39 of 1990, 40 of 1990 and 41 of 1990. to." 12. It is pertinent to note that I made query with the Mr. Dound, learned A.G.P. appearing on behalf of the Respondent State to find out whether the State has preferred any Appeal against the Judgment and award dated 28th June, 1991 in L.A.R. Nos. 39 of 1990, 40 of 1990 and 41 of 1990. After taking instructions from Government Pleader’s Office, the learned A.G.P. made a statement that neither the claimants nor the State has challenged the said Judgment dated 28th June, 1991 either before this Court or any other Court and the said Judgment has become final. Therefore it was incumbent on the part of the Reference Court to rely on the Judgment and award dated 28th June, 1991 passed in L.A.R. Nos. 39, 40 and 41 of 1990. Considering these facts I hold that the claimants are entitled to compensation in respect of acquired land at the rate of Rs.25,000/- and Rs.18,750/-per acre. 13. Learned counsel for the Appellant submitted that claimants are entitled enhanced compensation in respect of Mango trees, Guava trees, well and bore well. In respect of Mango trees whatever amount claimed by the claimants in their Reference Application under Section 18 of the Land Acquisition Act i.e. a sum of Rs.75,000/-, the same awarded by the Reference Court. Therefore, there is no question of enhancement in respect of Mango trees. So far Guava trees are concerned, at the time of joint verification it is specifically noted in the report that those trees were not found on the field. Not only that, the Appellant failed to make any claim to that effect before the S.L.A.O. Considering these facts the Reference Court rightly rejected Appellant’s claim holding that the claimants were not entitled any compensation in respect of Guava trees. Regarding well and bore wells, the Reference Court after considering the material on record, rightly held that the claimants failed to produce any cogent evidence for additional compensation. After going through the evidence of PW1 at Exhibit 84, I hold that the claimants are not entitled to any additional compensation in respect of the well and the bore well. 14. Regarding well and bore wells, the Reference Court after considering the material on record, rightly held that the claimants failed to produce any cogent evidence for additional compensation. After going through the evidence of PW1 at Exhibit 84, I hold that the claimants are not entitled to any additional compensation in respect of the well and the bore well. 14. The learned counsel for the Appellant/original claimant submitted that the Reference Court erred in coming to the conclusion that the Appellants’ land admeasuring 28 Rs from Gut No.6 and land admeasuring 1 Hector 25 Rs from Gut No.78 are seasonally irrigated land though the same were perennially irrigated lands. To that effect I have gone through the documents produced by Appellant at Exhibit 89, 90, 91 and 92 which are 7/12 extracts in respect of lands Gut Nos. 6, 138, 78 and 134. These 7/12 extracts show that the lands were Jirayat lands. But considering the evidence on record, the Reference Court held that lands involved in Gut Nos. 134 and 138 were perennially irrigated land and lands involved in Gut Nos. 6 and 78 were seasonally irrigated lands. Therefore, the contention raised by Mr. Sandeep Gorde Patil, learned counsel for the Appellant/ original claimant in respect of classification of the land is rejected. 15. In view of the above mentioned facts and circumstances, the present Appeal preferred by the Appellant/ original claimant is partly allowed to the extent that Appellant is entitled compensation in respect of land admeasuring 28 Rs from Gut No.6 and land admeasuring 1 Hector 25 Rs from Gut No.78 at the rate of Rs.18,750/- per acre being seasonally irrigated land; and at the rate of Rs.25,000/- per acre for land from Gut No.134 admeasuring 34 Rs and Gut No.138 admeasuring 54 Rs being perennial irrigated land. Hence the Order: ORDER .(i) The Judgment and award dated 14th December, 1992 passed by Civil Judge, Senior Division, Biloli in L.A.R. No.49 of 1991 is modified to the extent that the Appellant is entitled compensation in respect of land admeasuring 28 Rs from Gut No.6 and land admeasuring 1 Hector 25 Rs from Gut No.78 at the rate of Rs.18,750/- per acre being seasonally irrigated land; and at the rate of Rs.25,000/- per acre for land from Gut No.134 admeasuring 34 Rs and Gut No.138 admeasuring 54 Rs being perennial irrigated land. .(ii) The Reference Court is directed to calculate the enhanced compensation payable to the Appellant/ original claimant after giving notice to both the sides within four months from receipt of the Writ and certified copy of this Judgment from this Court. (iii) No order as to the costs.