fa299.08.odt 1/8
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH : NAGPUR.
FIRST APPEAL NO.299 OF 2008
APPELLANT: Chief General Manager, Western
Coalfields Limited, Jaripatka, Nagpur.
-VERSUS-
RESPONDENTS: 1. Dhanraj S/o Govindrao Farkade, Age
about 35 years, Occ. Agriculturist,
R/o at Gondegaon, Tah. Parshivni,
Dist.- Nagpur.
2. The State of Maharashtra through
ig Collector, Nagpur.
3. The Special Land Acquisition Officer,
Pench Project-1, Nagpur.
Shri C. S. Samudra, Advocate for the appellant.
Shri S. P. Kshirsagar, Advocate for the legal representatives of
respondent No.1.
Shri H. R. Dhumale, Asstt. Government Pleader for respondent Nos.2 &
3.
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CORAM: A.S. CHANDURKAR, J.
DATED: 5 MAY, 2016.
th ORAL JUDGMENT :
1. This appeal is filed under Section 54 of the Land Acquisition Act, 1894 (for short, the said Act) takes exception to the judgment of the Reference Court dated 19-10-2007 in L.A.C.
No.71/1993.
2. The respondent No.1 is the owner of lands ::: Uploaded on - 10/05/2016 ::: Downloaded on - 30/07/2016 01:02:10 ::: fa299.08.odt 2/8 admeasuring 0.54 R from Survey No.181 and 0.72 R from survey No.220 which are situated at Gondegaon, Tah. Parshivni, District Nagpur. The notification under Section 4 of the said Act is dated 25-4-1993 and the Land Acquisition Officer passed his award on 25-6-1996. The respondent No.1 being aggrieved by the amount of compensation granted by the Land Acquisition Officer filed reference under Section 18 of the said Act. The Reference Court enhanced the amount of compensation in so far as various trees are concerned. Being aggrieved, the present appeal has been filed.
3. Shri C. S. Samudra, the learned Counsel for the appellant submitted that the enhancement granted by the Reference Court for the trees in question was without sufficient evidence on record. It was submitted that in the e-statement which was prepared after considering the joint measurement report, a total of 143 orange trees were shown. The respondent No.1 by relying upon the 7/12 extract at Exhibit-16 claimed that there were 250 orange trees. The Reference Court accepted the 7/12 extract at Exhibit-16 and granted compensation @ Rs.3000/-
per tree for 250 orange trees. He submitted that merely on the basis of the 7/12 extract, the figure of 250 orange trees could not have been accepted. There was no other evidence on record and the expert who was examined by the respondent No.1 had ::: Uploaded on - 10/05/2016 ::: Downloaded on - 30/07/2016 01:02:10 ::: fa299.08.odt 3/8 admitted that he had not actually visited the acquired land. In support of his submissions, the learned Counsel placed reliance on the judgment of the Division Bench in Narayanlal Bansilal and others vs. State of Maharashtra 2012(1) Mh.L.J. 642 as well as the provisions of the Maharashtra Land Revenue Record of Rights and Registers (Preparation and Maintenance) Rules, 1971. It was then submitted that the existence of Kadu Nim, Babhul and Bori trees were not shown in the award. Even in the reference application there was no mentioned of Babhul and Kadu Nim trees. However, the Reference Court proceeded to grant compensation for the same. He submitted that the amounts for various trees as determined in L. A. C. No.74/1999 deserve to be granted by modifying the award.
4. Shri S. P. Kshirsagar, the learned Counsel for the respondent opposed aforesaid submissions. According to him, the 7/12 extracts at Exhibits 16 & 17 clearly indicated the presence of 250 orange trees as well as 14 Babhul trees and 15 Bori trees. He submitted that though the respondent No.1 examined himself, he was not cross-examined on these vital aspects. The defence as raised by the respondent No.1 in its reply to the reference application was also not proved and, therefore, the Reference Court was justified in relying upon the 7/12 extracts for ::: Uploaded on - 10/05/2016 ::: Downloaded on - 30/07/2016 01:02:10 ::: fa299.08.odt 4/8 determining the number of trees. He submitted that the appellant had not led any evidence and, therefore, adverse inference needs to be drawn against it.
Ms. N. P. Mehta, the learned Assistant Government Pleader appeared for the respondent Nos.2 & 3.
5. The following point arises for consideration:
Whether any case has been made out to interfere with the award of the Reference Court?
6.ig With the assistance of the learned Counsel for the parties, I have perused the records of the case and I have considered their respective submissions. For seeking compensation for the orange trees, the respondent No.1 placed on record a 7/12 extract at Exhibit-16. The same is for the year 1992-1993 and it indicates existence of 250 orange trees. In the e-statement which is annexed to the award, it is stated that there were 143 orange trees. This figure was arrived at after considering the joint measurement report. In the award, it has been stated that though the joint measurement took place in the year 1991 and the valuation was made on 25-4-1993, some trees ceased to exist during said intervening period. The respondent No.1 has examined himself at Exhibit 15 and the evidence of an horticulturist was led at Exhibit-34. In his cross-examination, the said witness admitted ::: Uploaded on - 10/05/2016 ::: Downloaded on - 30/07/2016 01:02:10 ::: fa299.08.odt 5/8 that he did not visit the acquired field and his report at Exhibit-25 was prepared on the basis of the e-statement, 7/12 extracts and as per the say of the respondent No.1.
7. Rule 29 of the Rules of 1971 stipulates maintaining a register of crops that are grown in the land as well as the area on which they are grown up. A separate card in Form XIII is maintained for each survey number. Perusal of Form-XIII does not indicate that there is any separate column wherein the number of trees grown on the land are required to be mentioned.
In the present case, while the e-statement indicates existence of 143 trees, the 7/12 extract at Exhibit-16 mentions 250 Orange trees. The decision of the Hon'ble Supreme Court in P. Ram Reddy and others Vs. Land Acquisition Officer (1995) 2 SCC 305 with regard to the weightage to be given to the evidence on record in land acquisition reference cases needs to be referred to.
In paras 15 & 16 of aforesaid decision, it has been observed thus:
"15...................................................................... But, in land acquisition references before civil courts, when witnesses give oral evidence in support of the claims of claimants for higher compensation the effective cross-examination of such witnesses, is not an uncommon feature if regard is had to the manner in which claims for enhanced compensation in land acquisition cases are defended in courts on behalf of the State.
Indeed, when a question arose before this Court whether the court is bound to accept the ::: Uploaded on - 10/05/2016 ::: Downloaded on - 30/07/2016 01:02:10 ::: fa299.08.odt 6/8 statements of witnesses only because they have not been effectiverly cross-examined or evidence in rebuttal has not been adduced, it was observed by this Court in Chaturbhuj Pande v. Collector thus:
"It is true that the witnesses examined on behalf of the appellants have not been effectively cross-examined. It is also true that the Collector had not adduced any evidence in rebuttal; but that does not mean that the court is bound to accept their evidence. The Judges are not computers..... they are bound to call into aid their experience of life and test the evidence on the basis of probabilities."
ig "16.......................................................................
If the courts were to accept such statements of witnesses as true merely because they are not subjected to cross-examination or effective cross- examination or because evidence in rebuttal thereof has not been adduced, it would amount to doling out public money to the claimants far in excess of their legitimate entitlement for just compensation payable for their lands."
This decision has been referred to by the Division Bench in Narayanlal (supra). From the aforesaid, it is clear that absence of effective cross-examination by itself cannot be the reason to accept the 7/12 extract at its face value. When it was the specific case of the appellant that there were 143 orange trees which case was based on the joint measurement report as well as e-statement in the award, it was necessary for the respondent No.1 to have brought some more cogent evidence on record. Except mere ::: Uploaded on - 10/05/2016 ::: Downloaded on - 30/07/2016 01:02:10 ::: fa299.08.odt 7/8 statement that there were 250 orange trees, the same cannot be accepted especially when the defence of the appellant is based on e-statement. It is necessary to note that the 7/12 extract is for the year 1992-93 while the notification under Section 4 of the said Act is dated 25-4-1993. Thus, merely because the appellant did not examine any witness to substantiate its defence, the case of the respondent No.1 merely on the basis of a solitary 7/12 extract cannot be accepted in view of the legal position referred to herein above. There is no question of drawing any adverse inference.
It will have, therefore, to be held that the respondent No.1 would be entitled for compensation for 143 orange trees. The finding recorded by the Reference Court in para 25 of its judgment to that effect is required to be interfered with.
8. In so far as the Kadu Nim, Babhul and Bori trees are concerned, the same are not referred to in the award. The application for compensation is also silent in respect of Babhul and Kadu Nim trees. The Reference Court has granted compensation for Babhul and Bori trees by relying upon the document at Exhibit-17. Considering the aforesaid reasons, the respondent No.1 would not be entitled for compensation for the trees for which there was no prayer.
In so far as the rate for orange trees is concerned, the ::: Uploaded on - 10/05/2016 ::: Downloaded on - 30/07/2016 01:02:10 ::: fa299.08.odt 8/8 same can be granted as per the amounts awarded in L.A.C.
No.74/1999 as First Appeal No.786/2006 filed by the appellant has been dismissed on 2-5-2016 and the rates granted therein have been maintained. The point as framed is answered by holding that the award of the Reference Court is required to be interfered with.
9. In view of aforesaid, the following amounts are granted for the various trees:
1. (a) for the orange trees, an amount of Rs.2000/- per tree for 143 orange trees; (b) for Lemon trees, an amount of Rs.1000/-
per tree for four trees; (c) for Sweet Lime trees, an amount of Rs.1000/- per tree for two Sweet Lime trees; (d) no compensation is granted for Kadu Nim, Babhul and Bori trees; (e) the amount of compensation granted for the well is maintained;
2. The award dated 19-10-2007 in L.A.C. No.17/1998 is modified in aforesaid terms. Rest of the award stands confirmed.
The first appeal is partly allowed in aforesaid terms with no order as to costs.
JUDGE //MULEY// ::: Uploaded on - 10/05/2016 ::: Downloaded on - 30/07/2016 01:02:10 :::